New York’s “no-fault law,” found in § 5104 of the New York Insurance Law, limits a plaintiff’s ability to recover non-economic damages in an auto accident claim. “Non-economic damages” are often the greatest losses in car accidents and other injury cases. They go beyond direct expenses like medical costs and lost wages. They include an accident victim’s pain and suffering, emotional anguish, and other harms that often occur because of a serious accident. The no-fault law only allows recovery of non-economic damages in cases involving “serious injury.” New York courts regularly hear disputes over whether an auto accident injury meets the statute’s definition of “serious injury.” Two recent cases from the New York Appellate Division, Second Department, Buchanan v. Keller and Broadwood v. Bedoya, demonstrate the sort of evidence needed for certain “serious injury” claims.
Section 5102(d) of the Insurance Law provides a list of injuries that constitute “serious injury” under the no-fault law. The items on the list range from the specific, such as “death” or “dismemberment,” to the more ambiguous. Two of these items are subject to ongoing dispute in the courts:
– “Permanent consequential limitation of use of a body organ or member” (PCL); and
– “Significant limitation of use of a body function or system” (SL).
A defendant moving for summary judgment on a “serious injury” claim has a prima facie burden of demonstrating that a plaintiff’s alleged injury does not meet the statutory definition. A plaintiff can counter this by establishing a “triable issue of fact.” In a 2009 decision, Staff v. Yshua, the Appellate Division, Second Department found that the defendant met this burden through expert testimony. The defendant presented an affirmation from an orthopedist who examined the plaintiff and concluded that their “injuries were now resolved and without permanency.” The court held that the plaintiff “failed to raise a triable issue of fact” in opposition to the defendant’s evidence. In a case from 2011, Jilani v. Palmer, the court found that the plaintiff had met their burden by producing an affidavit from a chiropractor that challenged the findings of the defense expert.
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