Outline of a Lawsuit – Part 21 – Filing a Motion for Summary Judgement on the issue of “serious injury”

A “Motion for Summary Judgement,” as discussed in a prior blog, is a tool used by lawyers to achieve a fair and quick resolution in certain cases.  It is a means by which the Court may decide a particular issue, prior to trial, in order to facilitate a streamlined outcome of a case.

A Motion for Summary Judgement on the issue of whether a plaintiff sustained a “serious injury” (as defined in Section 5102(d) of the Insurance Laws of New York State) may be made at any time after the defendants have served their “Answer.” This is technically true, but in reality, the Courts usually mandate that the application be made after all litigants have been deposed.

The plaintiff has the burden of proof and must prepare accordingly.  A physician’s sworn affirmation with the appropriate language is essential.  I emphasize the importance of the “sworn statement” because a mere medical narrative or report, signed by the physician is inadmissible as proof in your moving papers. (Remember: this application is like a mini trial on paper and the Rules of Evidence are strictly applied in the same way they would be applied in a courtroom trial).

Your doctor must set forth the history of the plaintiff (e.g., “patient, Mr Smith, was a passenger in a motor vehicle accident on May 1, 2016…”), his examination of the plaintiff, and must cite all medical records, diagnostic tests, etc., that he has relied upon in making his diagnosis.  The records he relies on must be “certified” as true copies (as per the latest case law from the Second Department Appellate Division).

The affirmation must also include range of motion tests performed by the doctor (and comparing those test results to normal range of motion tests).

Permanency of injuries, if any, must be addressed, as well as the issue of whether the injuries were caused (“causality”) by the accident.

If there is a gap in treatment, the doctor must explain why the patient stopped treating.  (For example, the patient reached maximum medical treatment and basically must lives with the pain and/ or loss of bodily function).

The plaintiff must also sign an affidavit which sets forth the facts of the case, the injuries that he sustained, the length of treatment, the type of treatment, and the activities that he may no longer perform as as result of the injuries.

Any other proofs in admissible form should be included (e.g., radiology reports accompanied by affirmation of the radiologist), photographs (e.g., depicting scars, property damage, etc).

Your attorney should address each section of 5102(d) that applies to the injuries you sustained.  Once this is done, the papers are “served” (delivered) to the attorney for the defendants and the Court.  The Court will choose a date to return for “oral argument” (a live, in person opportunity to argue your case before the judge).

If you are successful in winning this motion, you are at an advantage at the time of trial because the issue of “serious injury” is no longer a debate in a Jury Room.  This is one less issue for a jury to decide and makes it easier to reach a positive conclusion to your case.

The next blog will address the issues concerning preparation for trial.

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