In Johnson v. KS Transportation, a car accident case, the Appellate Division, First Department modified a summary judgment dismissing plaintiff’s complaint on the ground that plaintiff did not suffer a “serious injury” within the meaning of Insurance Law § 5102(d).
Section 5104(a) of New York’s No-Fault Law provides, in pertinent part, that “in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss, except in the case of a serious injury.” (Emphasis added.) Section 5102(d), in turn, defines “serious injury” as (in pertinent part):
a personal injury which results in … significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
“Plaintiff alleges she suffered serious injuries to her spine and left knee when she was struck by a car while crossing the street. About four months after the accident, plaintiff underwent surgery on her left knee to repair meniscal tears and patellofemoral traumatic arthropathy.”
Defendants
established their entitlement to judgment as a matter of law by showing that plaintiff did not suffer a serious injury to her spine and left knee. Defendants submitted an orthopedic surgeon’s affirmation concluding that there is “no basis to causally relate” plaintiff’s alleged injuries to her spine to the accident, and stating that plaintiff had “subjective complaints of back pain which is a common complaint that occurs in the absence of any trauma.” After examining an MRI of plaintiff’s knee taken prior to her surgery, the orthopedic surgeon further determined that the medial and lateral meniscal tears in plaintiff’s knee are the result of a degenerative condition and are “not unusual in an arthritic knee.” Defendants’ radiologist, who evaluated the MRI of plaintiff’s knee, concluded that plaintiff’s condition is “indicative of pre-existing degenerative disease.” The radiologist also noted that the ligamentous, tendinous and meniscal structures showed “[n]o acute post-traumatic changes.”
Plaintiff, in opposition,
raised an issue of fact as to whether she sustained a significant limitation to her left knee by submitting two disability certificates completed by Dr. Ronald Krinick, the orthopedist who performed her knee surgery. On the certificates, completed shortly after plaintiff’s knee surgery, Dr. Krinick indicated that plaintiff is “totally incapacitated.” Dr. Krinick also wrote on one of the certificates that plaintiff “remains totally disabled.” Although unaffirmed, the disability certificates are properly taken into consideration as they are not the sole basis of plaintiff’s opposition. In an affirmed report, plaintiff’s radiologist found evidence of diffuse trabecular bone injury in the context of trauma. Plaintiff also submitted an operative report by Dr. Krinick finding that plaintiff sustained medial and lateral meniscal tears and concluding that such injuries are “consistent with the [plaintiff’s] mechanism of injury” caused by the accident.
In light of the finding that plaintiff suffered “serious injuries” to her left knee, the court found it unnecessary to address whether plaintiff’s other claimed injuries were sufficient to meet the no-fault threshold.
Finally, the court held that plaintiff failed to raise an issue of fact under the “90/180” serious injury category:
The fact that plaintiff missed more than 90 days of work is not determinative. Further, her testimony that she can no longer “dance like [she] used to” or go grocery shopping alone is insufficient to establish that she was “restricted from performing substantially all of the material acts that constituted [her] usual and customary daily activities for 90 days during the 180 days following the accident”.