New York Appellate Court Decisions on “Permanent Consequential Limitations” and “Significant Limitations”

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.

In the Buchanan case, the plaintiff claimed serious injury to her elbow under the PCL and SL categories. The defendant, in moving for summary judgment, produced an affirmation from an orthopedic surgeon, “who stated that he measured the range of motion of the plaintiff’s right elbow.” The court stated that he did not include the actual measurements in the affirmation, nor did he state “what would be considered normal range of motion.” The court found that this was insufficient to meet the defendant’s prima facie burden, and ruled for the plaintiff.

The Broadwood case presented a similar scenario in reverse. The defendant’s expert, an orthopedic surgeon, measured the range of motion of the plaintiff’s cervical and thoracic spine, and “found restrictions of no more than 10 percent.” The defendant also produced deposition testimony from the plaintiff, in which he “testified that he missed only one week of work following the accident.” The plaintiff presented a chiropractor who did not provide measurements and “did not state what would be considered normal range of motion.” The court ruled for the defendant.

Auto accidents can lead to debilitating injuries or death. No matter the circumstances of your accident, the experienced New York car accident lawyers at the Law Offices of Mark A. Siesel are available to answer your questions and address your concerns. Please contact us at 914-428-7386 or online today to schedule a free consultation to discuss your legal rights and options.