In Sylvester v. Jimenez, an automobile accident case, Judge Bluth of the New York Supreme Court denied defendant’s motion for summary judgment that plaintiff did not sustain a “serious injury” under Insurance Law 5102(d).
This was a two-car accident; plaintiff Sylvester was driving, and plaintiff Turner was a passenger, in one car, and defendant Jimenez was driving the other car. In their verified bill of particulars Sylvester claimed various injuries, including headaches, and Turner claimed various injuries, including headaches and dizziness.
In denying defendant’s motion, the court held:
[N]either of defendant’s doctors’ reports addressed any complaints of headaches … or dizziness … which were contained in the bill of particulars. There was no report of a neurologist to evaluate claims of headaches and/or dizziness as a result of this accident and Dr. Crane, defendant’s examining orthopedist, did not address those alleged injuries. Accordingly, defendant did not meet his prima facie burden of demonstrating that plaintiffs failed to sustain a serious injury, and the burden never shifted to plaintiffs to oppose the motion.