Under the New York No-Fault law, a car accident injury victim has several different ways that they can satisfy the law’s requirement of having sustained a “serious injury”. If none apply, there is the catch all 90/180 day rule. What exactly is that rule? The injury victim must have a medically-determined injury or impairment of a nonpermanent nature which prevents him/her from performing substantially all of the material acts which constitute his/her usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident. The courts have ruled that disability from work will generally meet the requirements for the 90/180 rule. The following 2nd Dept. appeals court case involved a determination regarding the proof offered in support and in opposition to the claim that the injury victim met the 90/180 day rule.
Reynolds v Wai Sang Leung
2010 NY Slip Op 08550 [78 AD3d 919]
November 16, 2010
Appellate Division, Second Department
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Schack, J.), dated April 9, 2010, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
While we affirm the order appealed from, we do so on a ground other than that relied upon by the Supreme Court. The defendant failed to meet his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The defendant’s motion papers failed to adequately address the plaintiff’s claim, clearly set forth in his bill of particulars, that he sustained a medically-determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (hereinafter the 90-180 category of serious injury) (see Udochi v H & S Car Rental Inc., 76 AD3d 1011 [2010]; Strilcic v Paroly, 75 AD3d 542 [2010]; Bright v Moussa, 72 AD3d 859 [2010]; Encarnacion v Smith, 70 AD3d 628 [2010]; Negassi v Royle, 65 AD3d 1311 [2009]; Alvarez v Dematas, 65 AD3d 598 [2009]; Smith v Quicci, 62 AD3d 858 [2009]; Alexandre v Dweck, 44 AD3d 597 [2007]; Sayers v Hot, 23 AD3d 453 [2005]).
The subject accident occurred on October 31, 2006. In his supplemental bill of particulars, the plaintiff alleged that, after the subject accident, he was unable to resume working for more than 110 weeks. In support of his motion, the defendant submitted affirmed medical reports of a neurologist who examined the plaintiff on April 29, 2009, and of an orthopedic surgeon who examined the plaintiff on April 28, 2009. Although both physicians addressed the issue of whether the plaintiff sustained a significant limitation of use of a body function or system or a permanent consequential limitation of use of a body organ or member, they failed to relate their findings to the 90-180 category of serious injury for the period of time[*2]immediately following the subject accident.
Since the defendant failed to meet his prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Strilcic v Paroly, 75 AD3d at 543; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Mastro, J.P., Florio, Dickerson, Belen and Lott, JJ., concur.
If you or a loved one has been the victim of a serious injury or fatality due to a Car Accident, you may be entitled to compensation. Contact an experienced federal and state courts serious personal injury trial lawyer at The Maurer Law Firm, PLLC to schedule a FREE CONSULTATION to discuss your rights by filling out our free website “Tell Us About Your Case” review form, or phone us directly at 845- 896-5295.
Ira Maurer is recognized by Super Lawyers as an outstanding lawyer who has attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations. Ira Maurer is also a Lifetime Member of the Multi-Million Dollar Advocates Forum.
