The Serious Consequences of New York’s “Serious Injury” Law

The issue of whether the plaintiff suffered a “serious injury” as defined in the Insurance Law §5102 (d) is raised constantly in those cases in which a plaintiff claims soft tissue injuries, bulging discs, disc herniations, and other cervical and lumbar syndromes. Where the court concludes that a claimed injury fails to meet the criteria set forth in the New York State Insurance Law that defines “serious injury”, the case will be dismissed. Thus, such issues must be dealt with by the plaintiff submitting convincing medical affidavits sufficient to satisfy Section §5102 (d).

Generally, the courts have wide discretion in determining whether the plaintiff has submitted proof sufficient to reach the 5102 (d) threshold. On defendant’s motion to dismiss the case, even should the plaintiff prevail in defeating defendant’s motion, the plaintiff must still satisfy a jury that the proof at trial rises to the level of a “serious injury” within the purview of the insurance law as will be charged by the trial Judge at the conclusion of the trial.

The “serious injury” issue was decided again most recently in Solis v. New York City Transit, a New York County case published in the New York Law Journal on August 27, 2012 and decided by Justice Stallman.

There, Solis claimed injuries resulting from a motor vehicle accident. The defendant moved to dismiss the case on the grounds that plaintiff’s claim of injury to her knee, neck, and back, did not meet the requirements of “serious injury” under the New York State Insurance Law §5102 (d).

The court considered the medical affidavit of the defendant, concluding that the claimed injury did in fact meet the requirements of the insurance law, thereby denying defendant’s motion to dismiss.

The Solis case offers another example of how the defense bar attempts to employ the insurance law to dismiss an action as not falling within the law’s definition of “serious injury”.

Given the present strategy of the defense bar, this is a warning to those who are injured in a motor vehicle accident and are instituting suit. It is essential that following the accident that produces the injury, a daily diary be maintained that will record each day’s pain, disability, medical treatment, doctor’s visits, medications, bed and home confinement, absence from employment, limitation of range of motion and any other items that will address the issue of “serious injury” within the time frame set forth in the insurance law. Such a detailed and accurate record will indeed be crucial as a reference source for the plaintiff should a motion be made by the defendant to dismiss the case under the insurance law. It will also serve as a significant timeline for accurate and effective deposition and trial testimony. Remember, the failure to offer supportable evidence on even one item can lead to a disastrous result when the issue of “serious injury” is raised as an affirmative defense. Such a move by the defendant must never be ignored or treated lightly, but must be dealt with vigorously and with persuasive proof of a “serious injury” within the definition of New York State Insurance Law §5102 (d).