A motion by the accused woman for an order awarding her summary judgment dismissing the claims of the complainant that she did not sustain a serious injury within the meaning of Insurance Law is granted.
A cross-motion by the complainant husband for an order awarding him summary judgment dismissing the accused woman’s counterclaim as defendant was solely liable for the happening of the accident is also granted.
A New York Criminal Lawyer said that viewing the evidence most favorably to the accused, it is nevertheless uncontroverted that the impact between the vehicle driven by the complainant husband and the vehicle driven by the accused woman took place while the complainant husband was stopped and waiting to cross over the double yellow lines to turn into his own driveway. Moreover, the accused woman was concededly drinking prior to the accident and was arrested for drunk driving following the accident. She also pled guilty to DWI and was traveling at approximately 20 miles per hour with her foot on the gas at the time of impact. At best, the accused struck the complainant’s vehicle without crossing over the double yellow lines into the complainant’s lane and instead struck the complainant’s stopped vehicle while both vehicles were pretty much right on the line.
Under such circumstances, the presence of the complainant’s stopped vehicle on the roadway was not a proximate cause of the impact but merely furnished the conditions for the DWI accident to occur. The accused woman was accordingly solely responsible for the drunk driving accident.
Essentially, in order to satisfy the statutory serious injury threshold, the legislature requires objective proof of a complainant’s injury. A Bronx Criminal Lawyer said the Court of Appeals stated that complainant’s proof of injury must be supported by objective medical evidence, such as sworn interpretations of MRI and CT scans. However, MRI and CT scan tests and reports also must also be paired with the doctor’s observations during his physical examination of the complainant. Unsworn MRI reports can also constitute competent evidence but only if both sides rely on those reports.
On the other hand, even where there is ample objective proof of the complainant’s injury, the Court of Appeals held that certain factors may nonetheless override a complainant’s objective medical proof of limitations and permit dismissal of the complainant’s complaint. Specifically, the Court of Appeals held that additional contributing factors, such as a gap in treatment, an intervening medical problem, or a preexisting condition, would interrupt the chain of causation between the accident and the claimed injury.
A person bringing a claim for damages for personal injuries under the permanent loss of use of a body organ, member, function or system category, as in this case, must prove that the permanent loss of use is a total loss of use.
The accused woman has provided evidence demonstrating the lack of serious injury, the burden shifts to plaintiffs to present sufficient evidence to defeat the motion. To defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial and must make his showing by producing evidentiary proof in admissible form.
In opposition to the accused woman’s motion, the complainant woman provides her own affidavit, an affirmation of her treating neurologist dated October 16, 2007 and an affirmation of her radiologist interpreting the MRI of her left knee taken on June 1, 2006.
The affirmations of the complainant woman’s treating neurologist and radiologist, while containing objective findings of some injury, include no range of motion or other findings so as to suffice in demonstrating a material issue of fact on her alleged significant limitation of use. Moreover, the complainant’s proffered explanation for her gap/cessation of treatment — that her no fault benefits had run out — is legally insufficient without additionally demonstrating that her personal financial circumstances precluded further treatment otherwise.
Nor has she created a triable issue of fact regarding the seriousness of her injury during 90 of the first 180 days following the DWI accident. Her deposition testimony read in conjunction with her bill of particulars indicates that she does not claim her injuries prevented her from employment for more than one week post-accident. Her attempt to claim otherwise by submitting an affidavit containing inconsistent allegations is rejected as an attempt to raise a feigned issue of fact. The accused woman’s motion is accordingly granted and the personal injury claims of the complainant woman are dismissed without costs.
Accidents occur due to negligence. When such event occurs, it is not just the physical harm that would affect the victims but they would have to deal with emotional dilemma as well. If you have been charged with a DWI, theft or sex crimes, contact Stephen Bilkis and Associates. Stephen Bilkis and Associates can also provide you with a Bronx DWI Defense Lawyer to fight for you in court.