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By Bill Altreuter

The wheels of the law grind slow, but fine. It has taken a generation, but New York's No-Fault law has finally been sufficiently defined by the courts to be coherent-- and to have its intended effect. We are at a place where a "serious injury" and the criteria that define how to determine the issue can be articulated, and this, in turn, means that the overwhelming majority of automobile accident cases are no longer actionable.

See, e.g., Delfino v. Luzon (1st Dept. 2009):

"Although the [plaintiff's] expert listed specific numeric losses of range of motion for the left shoulder, he failed to describe what tests were used or provide any objective basis to substantiate his range of motion assessments, his opinion that the restrictions were causally linked to the accident, or his prognosis that plaintiff will never fully recover and might require further surgery. Those omissions in plaintiff's expert's affirmation are fatal to plaintiff's claim (see Rodriguez v. Abdallah, 51 AD3d 590 [2008]; Smith v. Cherubini, 44 AD3d 520 [2007]; Munoz v. Hollingsworth, 18 AD3d 278 [2005]). The absence from the record of objective findings of limited range of motion contemporaneous with the accident compounds the inadequacy of plaintiff's opposition (see Lloyd v. Green, 45 AD3d 373 [2007]).

More importantly, plaintiff's expert did not even address, let alone rebut, the objectively substantiated findings of defendant's experts that plaintiff's conditions are congenital and degenerative, and therefore did not raise a triable issue of fact as to causation (see Mullings v. Huntwork, 26 AD3d 214, 216 [2006]). In addition, plaintiff's expert did not attempt to reconcile his conclusory assertion that the shoulder surgery was necessitated by accident-related injuries with the MRI report describing the shoulder as "unremarkable" other than "fluid and/or soft tissue inflammation surrounding the acromioclavicular joint."

Full post as published by Outside Counsel on January 29, 2009 (boomark / email).