Motor Vehicle Accident: Gift v. Dise (N.Y. Sup. Ct., Monroe Co.)

December 31, 2017

by Aalok J. Karambelkar, Esq.


In Gift, plaintiff claimed she sustained serious injuries as a result of a rear-end motor vehicle accident.  The plaintiff’s claims included aggravation of a prior cervical condition, neck pain, cervical sprain, whiplash, and bilateral carpal tunnel syndrome requiring bilateral carpal tunnel release surgeries. Plaintiff claimed “serious injury” under the permanent loss of use, permanent consequential limitation, significant limitation, and 90/180 categories under Section 5102(d) of the New York Insurance Law.


Defendant moved for summary judgment on the grounds that plaintiff did not sustain a qualifying “serious injury” as defined by the statute.  The Supreme Court, Monroe County, granted defendant’s motion, dismissing the case in its entirety.  Specifically, the Court found defendant’s medical expert provided evidence of preexisting bilateral carpal tunnel syndrome and an extensive history of cervical spine injury, concluding the accident only caused a temporary mild exacerbation of ongoing neck pain.  The Court also found plaintiff failed to plead (or set forth any claim in her bill of particulars as to) an exacerbation of preexisting carpal tunnel.  The Court also found plaintiff’s symptoms of cervical range-of-motion deficits were not causally connected to the accident but instead stemmed from pre-existing conditions, as medical records showed she was on disability for the condition prior to the accident and she was involved in prior accidents involving the cervical spine.  The Court also held that plaintiff’s testimony that she “stayed in bed a lot” following the accident was insufficient to raise a question of fact regarding the 90/180 category, as that category requires a medically-determined injury or impairment that prevented her from performing her daily activities, whereas here the plaintiff’s limitations were subjective and belied by medical records generated during the statutory period.


On oral argument, the Court also took issue with the fact that plaintiff did not submit an affirmed opinion regarding the categories of “serious injury” claimed, instead relying on certified medical records to raise a question of fact.  Pursuant to Irizarry v. Lindor, 110 A.D.3d 846, 847 (2d Dept. 2013) and Parmisani v. Grasso, 218 A.D.2d 870 (3d Dept. 1995), the Court held that even if medical records are properly before the Court, the opinions and conclusions contained within those medical records are not properly before the Court unless affirmed or sworn to under penalty of perjury.  The Court also found the medical records insufficient in that the records themselves did not speak to whether plaintiff’s injuries met the threshold for the claimed categories of “serious injury.”