Published on:

Motion to Dismiss Case Successfully Defeated by Daniela F. Henriques

Daniela F. Henriques, managing partner at Leav & Steinberg LLP, recently successfully defeated defendants’ respective motions to dismiss the complaint on the issue of serious injury/threshold.

Assessing the Extent of the Injuries

Court columns representing the services of personal injury attorney office Leav & Steinberg LLP in New York, NY

Plaintiff’s Bill of Particulars alleges post-concussion syndrome and injuries to the cervical spine, lumbar spine, right knee, and right shoulder. In support of their motions for summary judgment, defendants submitted the medical affirmations of J. Serge Parisien, MD, Vladimir Zlatnik, MD, and Michael Setton, MD. Dr. Setton reviewed MRIs of plaintiff’s cervical spine, lumbar spine, and right knee, as well as an arthrogram of his right shoulder, finding degenerative disc disease in plaintiff’s spine, unrelated to any trauma, and finding degeneration and evidence of prior repair in plaintiff’s right shoulder and knee, unrelated to the subject accident.

On Sept. 12, 2016, Dr. Parisien conducted a neurological IME of the plaintiff, revealing the following ranges of motion: In the cervical spine, flexion was 50 degrees, extension was 60 degrees, rotation was 80 degrees, and lateral bending was 45 degrees, all of which are normal. In the lumbar spine, flexion was 60 degrees, extension was 25 degrees, and lateral bending was 25 degrees, all of which are normal. In addition, Dr. Parisien found full ranges of motion in the plaintiff’s right knee and right shoulder and reported negative outcomes to all tests.

The Court Opinion

On Sept. 15, 2016, Dr. Zlatnick conducted a neurological IME of plaintiff, revealing the following ranges of motion: In the cervical spine, flexion was 35 degrees, extension was 40 degrees, left lateral bending was 35 degrees, right lateral bending was 35 degrees, and left and right rotation were 65 and 60 degrees, respectively. In the lumbar spine, flexion was 65 degrees, extension was 20 degrees, left lateral bending was 15 degrees, and right lateral bending was 20 degrees. While Dr. Zlatnick attributes the decreased ranges of motion to self-restriction, there is no explanation as to why the plaintiff had full ranges of motion when tested by Dr. Parisien three days prior. The defendant’s moving papers are therefore insufficient to establish a prima facie case that the plaintiff’s injuries were not serious within the meaning of the No-Fault Law, Marquez v Oballe, 14 AD3d. 667 (2d Dept. 2005).

The Court declines to consider the affidavit of Dr. Calum McRae, which alleges that there is no injury mechanism present to account for the alleged injuries to the plaintiff, as McRae is not a medical doctor, See, Gates v. Longden, 120 A.D.3d 980 (4th Dept. 2014).

Contact Leav & Steinberg

Daniela F. Henriques and the other personal injury attorneys at Leav & Steinberg have years of experience, which help us achieve successful results such as those in this case. While no case has a guaranteed outcome, our attorneys will advocate on your behalf to help ensure that you receive compensation. If you’ve been injured in New York, contact our office for a free consultation.