Monday, March 18, 2013

"Serious Injuries" In Car Accidents

If you are injured in a car accident in the Buffalo New York area , the law requires that you establish that you sustained a “serious injury.”  In a case where the  crash victim sustains an injury to the back such as a herniated or bulging disc, it is common for the defendant to move for summary judgment asking the judge to dismiss the case.  In this motion practice the defendant has the burden to  first make a prima facie showing that the plaintiff did not sustain a “serious injury” within the meaning of Section 5102 (d) of the Insurance Law.  See, Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 384 (2005).  Where the defendan  fails to make the appropriate showing the burden does not shift to the plaintiff to show that she has sustained a serious injury and the court need not consider the sufficiency of the opposing papers.  Kennedy v. Brown, 23 A.D.3d 625, 626, 805 N.Y.S.2d 408, 409 (2 Dept. 2005).
The Insurance Law § 5102(d) defines a “serious injury” as a “personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or 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 ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.”

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