Adler v. Bayer (Motion for leave to appeal granted on Jan 18, 2011) 2010 N.Y. Slip Op. 07300 (Oct. 12, 2010)

The Second Department has developed a line of analysis regarding demonstrating a prima facie case of “serious injury” pursuant to Insurance Law § 5102(d) and the Court of Appeals’ decision in Toure v. Avis Rent A Car Sys., Inc.

The line of case law requires that a plaintiff demonstrate limitations of range of motion contemporaneous with the subject motor-vehicle accident.

 The plaintiff in Adler challenges this line of reasoning. The plaintiff in Adler was injured in a motor-vehicle accident when the vehicle in which he was a passenger went off the road and struck a tree. He sustained injuries to his back, needs, eyes, and head. The plaintiff’s treating physician – a physical medicine and rehabilitation physician – verified the plaintiff’s injuries to his right shoulder, right wrist, both knees, right ankle, and cervical and lumbar spine through different tests. However, he did not record the plaintiff’s range of motion limitations because he opined that doing so would be “unreliable”.  In several follow-up examinations, the plaintiff’s treating physician determined that the plaintiff’s examinations were no better and, therefore, he could not record range of motion limitations. Approximately four years after the accident, the plaintiff’s treating physician quantified the plaintiff’s range of motion limitations.  At trial, the treating physician opined, within a reasonable degree of medical certainty, that the plaintiff’s injuries constituted a “permanent partial disability and . . . had impairment in multiple joints and . . . has alterations on examination of different parts of his body.”

The Second Department reversed a judgment in favor of the plaintiff after a jury trial and granted the defendants’ motion for a directed verdict.  In a terse, unrevealing decision, the Court reasoned that “[t]he plaintiff was required to show the duration of the alleged injury and the extent or degree of the limitations associated therewith . . ., which he failed to do.”  By citing Ferraro v. Ridge Car Serv., the Court’s reasoning appears to based on the plaintiff’s failure to provide contemporaneous findings of range-of-motion limitations in his spine.

 The novel question presented is whether Section 5102 and the Court of Appeals’ case law interpreting the “serious injury” threshold require such a showing.  The plaintiff argued in his motion for leave to appeal that such a showing punishes a plaintiff for first concentrating on treatment and not the litigation process.

 Notably, the Court of Appeals will likely hear this appeal with another appeal on the same issue – Perl v. Meher, 74 A.D.3d 930 (2d Dep’t 2010).  Also see Travis v. Batchi tomorrow.