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No Fault Abuse

December 4, 2015
By: Frank Scahill

Life after Perl v. Meher, 18 N.Y.3d 208, 960 N.E.2d 424 (2011) was supposed to have bright lines and boundaries. In PERL, the Court of Appeals stated the obvious, "No-fault abuse still abounds today. In 2010, no-fault accounted for 53% of all fraud reports received by the Insurance Department (Annual Report to the Governor and the Legislature of the State of New York on the Operations of the Insurance Frauds Prevention Act at 23). 'Serious injury' claims are still a source of significant abuse, and it is still true, as it was in 2005, that many courts, including ours, approach claims that soft-tissue injuries are 'serious' with a 'well-deserved skepticism' (Pommells, 4 N.Y.3d at 571, 797 N.Y.S.2d 380, 830 N.E.2d 278)."

The pendulum swung back in favor of the plaintiffs by the Court's pronouncement that, "We agree with the Appellate Division dissenters in Perl that a rule requiring 'contemporaneous' numerical measurements of range of motion could have perverse results. Potential plaintiffs should not be penalized for failing to seek out, immediately after being injured, a doctor who knows how to create the right kind of record for litigation. A case should not be lost because the doctor who cared for the patient initially was primarily, or only, concerned with treating the injuries. We, therefore, reject a rule that would make contemporaneous quantitative measurements a prerequisite to recovery."

How is this Court of Appeals ruling applied in the four Appellate Divisions of the Supreme Court today? Clearly the Plaintiff's with questionable threshold injuries are routinely winning cases on appeal based on the relaxed standard in PERL. Consider the four cases below decided within the last 60 days.

The First Department, in Jallow v. Siri, No. 156160/12, 2015 WL 6970461 (N.Y. App. Div. Nov. 12, 2015) stated, "We note that where a plaintiff has raised a triable issue of fact as to whether certain injuries constitute 'serious injury' under the statute, he is also entitled to seek damages for other injuries caused by the accident that might not otherwise satisfy the statutory threshold. (see Pantojas v. Lajara Auto Corp., 117 A.D.3d 577, 986 N.Y.S.2d 87 [1st Dept 2014]; Caines, 105 A.D.3d at 404, 963 N.Y.S.2d 17). "Plaintiff, a 24-year-old male, had no history of injury to the knee or back prior to the accident on May 2, 2012. A July 25, 2012 MRI of plaintiff's spine revealed a herniation at the level of L5-S1. A July 2, 2012 MRI of plaintiff's knee revealed a 'tear of the undersurface of the posterior horn of the medial meniscus, a high grade partial tear of the anterior cruciate ligament and partial tears of the ... lateral collateral ligaments.' Plaintiff underwent arthroscopic surgery four months after the accident to repair the medial meniscal tear. (see Malloy, 79 A.D.3d at 584-585, 913 N.Y.S.2d 95). Plaintiff's treating physiatrist and expert, Dr. Goldenberg, and his expert orthopedic surgeon, Dr. McMahon, opined that Plaintiff's injuries were traumatically induced as a result of the accident, directly controverting defendants' experts' opinions that plaintiff's injuries were degenerative in origin and/or resolved."

The Second Department in Alberto J. Rivera, appellant, et al., plaintiff, v. Dequan L. Sloane, et al., respondents., No. 2015-02025 (INDEX NO, 2015 WL 7475497 (N.Y. App. Div. Nov. 25, 2015), sets forth no reason for reversal of the lower Court, merely stating, "Rivera raised a triable issue of fact as to whether he sustained a serious injury to the lumbar region of his spine. (see Perl v. Meher, 18 NY3d 208, 218-219). Since Rivera raised a triable issue of fact with respect to the injury to the lumbar region of his spine, it is not necessary to determine whether the evidence he submitted raised a triable issue of fact as to whether his other alleged injuries meet the 'no fault' threshold. (see Linton v. Nawaz, 14 NY3d 821, 822; Rivera v. Ramos, 132 AD3d 655)."

The Third Department, in Solomatin v. Fisher, No. 150233/11, 2015 WL 6971411 (N.Y. App. Div. Nov. 12, 2015), also adhered to the same approach, without discussing rationale, merely stating, "The defendants failed to meet their prima facie burden of demonstrating 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 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 955-956, 582 N.Y.S.2d 990, 591 N.E.2d 1176). The defendants' motion papers failed to adequately address the plaintiff's claim, set forth in the Bill of Particulars, that she sustained a medically determined injury or impairment of a non-permanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident. (see Che Hong Kim v. Kossoff, 90 A.D.3d 969, 934 N.Y.S.2d 867; cf. Calucci v. Baker, 299 A.D.2d 897, 750 N.Y.S.2d 675). In light of the defendants' failure to meet their 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 Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642)."

The Fourth Department, in Clark v. Boorman, 132 A.D.3d 1323, 17 N.Y.S.3d 255 (N.Y. App. Div. 2015) stated, "It is well established that proof of a herniated disc, without additional objective evidence, is not sufficient to establish a serious injury (see Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278). Plaintiff also submitted, however, the certified records of his treating chiropractor, as well as the report of the physician who conducted an Independent Medical Examination (IME) for defendant two years later, and those documents quantify significant limitations in the range of motion in plaintiff's cervical and lumbar spine. Plaintiff therefore established, the 'extent or degree of the limitation ... [and] its duration.' (Lively v. Fernandez, 85 A.D.3d 981, 982, 925 N.Y.S.2d 650; see Gates v. Longden, 120 A.D.3d 980, 981-982, 991 N.Y.S.2d 229; see generally Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197). Defendant failed to raise an issue of fact sufficient to defeat the motion with the conclusory opinion of the IME physician that the MRI studies were 'unremarkable'."

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