In a remarkable reversal engineered by Jay Feigenbaum, senior trial and appellate attorney at Finz & Finz, P.C., a Second Department panel not only reversed the dismissal of a automobile accident injury case but awarded summary judgment to the plaintiff.
When Margaurite Carmody was hit in the rear while stopped for a traffic signal in Lawrence, New York, she thought it was a little fender-bender and drove off thinking she was not injured. As with many accidents of this type, Ms. Carmody It was not until the next day when she awoke with serious neck and back pain. When the pain did not go away, she sought medical treatment and was found to have sustained herniated discs in her neck and back. She had difficulty turning her head, bending and twisting unable to extend or rotate.
Ms. Carmody initially sought counsel from a Nassau County law firm only to have her case rejected. Thereafter, she came to Finz & Finz, P.C., and Mr. Feigenbaum began prosecuting the case on her behalf. As there was no question who was at fault for this accident, plaintiff was awarded summary judgment on the issues of liability. The defendants, unable to argue that the accident was not their fault, sought to have the case dismissed on the ground that Ms. Carmody did not sustain a “serious injury” according to Insurance Law §5102. In a rare countermove, Mr. Feigenbaum asked the court to award summary judgment to the plaintiff since all the doctors on both sides found range of motion deficits and there was no question that plaintiff did in fact sustain a serious injury.
Even though all of the medical reports submitted by the parties established that plaintiff had significant restrictions in her cervical and lumbar ranges of motion, which would establish that she sustained a “serious injury”, the Nassau County Supreme Court, nonetheless, dismissed her case.
In dismissing the complaint, the court inexplicably ignored the most damaging report from the neurologist that defendants retained to examine plaintiff where that doctor found significant deficits to plaintiff’s range of motion. The lower court compounded that error by committing an error in determining that the affirmed report from plaintiff’s doctor was inadmissible and the business records from the first doctor who treated plaintiff were also inadmissible.
Unwilling to accept this decision, Mr. Feigenbaum promptly appealed the decision, pointing out that the doctors retained by the defendants found that plaintiff had significant deficits in her neck and back. It was also important to note that Ms. Carmody had sought medical treatment very soon after the accident, complaining of pain and restricted movement in her neck and back. It was further established that Ms. Carmody’s doctors also found limitations in her neck and back as a result of her herniated discs.