Barclay Damon
Barclay Damon

Legal Alert

New York Court of Appeals Affirms Appellate Division Finding That Plaintiff Failed to Establish a Serious Injury Under Insurance Law 5102

The Court of Appeals recently reaffirmed the principle that a plaintiff’s medical expert must adequately address degenerative conditions in opposing a defendant’s motion for summary judgment under the serious injury threshold in Alvarez v. NYLL Mgt. Ltd. 2015 NY Slip Op 1303 (Court of Appeals 2015) when it affirmed the First Department’s decision of Alvarez v. NYLL Mgt. Ltd., 2014 NY Slip Op 6151 (1st Dep’t 2014).

In Alvarez, the plaintiff was involved in a car accident and alleged serious injuries under Insurance Law 5102 to her right shoulder, right knee, and neck. In order to maintain a lawsuit for non-economic damages (pain and suffering) based on injuries suffered in a motor vehicle accident, a plaintiff must allege and prove causally related qualifying serious injuries under Insurance Law 5102. The defendants moved for summary judgment under the serious injury threshold, arguing that the plaintiff did not have a qualifying serious injury. In support of the motion, the defendants submitted expert reports from an orthopedic surgeon and radiologist, and the defendants relied on the plaintiff’s own medical records. The defendants’ orthopedic expert found full range of motion in the plaintiff’s knee and shoulder, and both the orthopedic expert and radiologist concluded that the plaintiff’s conditions were degenerative in nature. The plaintiff’s MRI reports that were submitted by the defendants revealed a degenerative condition in the shoulder, a normal right knee, and a degenerative condition in the cervical spine. The other medical records submitted by the defendants included additional findings of full ranges of motion of the right knee, and a history of arthritis.

In a split decision, the First Department found that the plaintiff had failed to raise a triable issue of fact in opposition to the defendants’ motion by relying on a conclusory opinion from an orthopedic surgeon. The plaintiff’s expert opined that the shoulder, knee, and spine conditions were caused by the accident and not degeneration. Although the dissent found the expert’s opinion to be more than adequate, the majority noted the surgeon’s failure to address or contest the detailed findings of preexisting degenerative conditions by the defendants’ experts, which were acknowledged in the reports of plaintiff’s own radiologists. The majority also commented on the plaintiff’s expert’s failure to address the plaintiff’s history of arthritis or the conflicting findings by plaintiff’s other physician of normal ranges of motion in her knee and shoulder. The Court unanimously dismissed the plaintiff’s 90/180-day claim for failing to allege in her bill of particulars that she was incapacitated for at least 90 of the first 180 days following the accident.

The Court of Appeals unanimously affirmed the decision upon a review of the prior appellate briefs along with an amicus curiae brief filed by the New York State Trial Lawyers Association.

The Alvarez decision reiterates the importance that degenerative conditions have in serious injury threshold cases. Defendants can successfully defend the case by pointing to degenerative conditions in moving for summary judgment on the serious injury threshold, and plaintiffs must adequately address and explain those conditions in order to defeat a defendant’s motion.  


If you require further information regarding the content of this Legal Alert, please contact Thomas B. Cronmiller, Chair of the Torts & Products Liability Defense Practice Area, at (585) 295-4424 or tcronmiller@hblaw.com.