In Ferrara v. Middleton, the Appellate Division, First Department recently held that plaintiff raised an issue of fact as to whether he satisfied the “serious injury” threshold of New York’s “No Fault Law” sufficient to defeat defendants’ motion for summary judgment.
Defendants met their initial burden on summary judgment:
Defendants established prima facie that plaintiff did not sustain a serious injury of a permanent nature. They submitted the affirmed report of an orthopedic surgeon who, upon examination, found that plaintiff had full range of motion in his shoulders and that his surgery was successful, allowing him to resume school, sports and work activities. Defendant also submitted medical records from plaintiff’s treating physicians, who reported shortly after the accident that plaintiff had full range of motion in his left shoulder.
Plaintiff, however, presented enough evidence to defeat defendants’ motion:
In opposition, plaintiff raised a triable issue of fact concerning a significant limitation and a permanent consequential limitation with respect to his left shoulder. The MRI and the surgical reports of plaintiff’s arthroscopic surgery provide objective evidence of a superior labrum anterior and posterior tear. Plaintiff’s treating orthopedic surgeon, who examined plaintiff on September 19, 2012, three years after the accident, found significantly decreased range of motion and opined that plaintiff suffered permanent significant or consequential limitations as a result of the accident. He also noted that, while plaintiff “started feeling better after 6 weeks of intense physical therapy,” his condition deteriorated and he started feeling pain, which was corroborated by positive tests for impingement.
The court ruled against plaintiff, however, on his “90/180” claim. The 90/180 serious injury category requires a plaintiff to demonstrate
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 [90] days during the [180] days immediately following the occurrence of the injury or impairment.
Here, “[d]efendants also established prima facie that plaintiff did not suffer a 90/180-day injury by submitting plaintiff’s bill of particulars alleging that he was a student and that he did not miss any classes and missed only 31 days of work”, and “[i]n opposition, plaintiff failed to submit any evidence of a medical determination that he was unable to engage in substantially all of his material and customary daily activities for 90 of the first 180 days after the accident.”