A divided Appellate Division, First Department, ruled by a 3-2 majority in Vaughan v. Leon et al., 94 A.D.3d 646 (1st Dep't 2012) that a physician's affirmation stating that Plaintiff's injuries were caused by a car accident was enough to defeat Defendants' summary judgment motion, despite not directly rebutting Defendants' expert's opinion that Plaintiff's condition was due to degenerative changes to her spine.
Plaintiff Dorothy Vaughan and Defendant Leighton Leon, a taxi driver, were involved in a car accident in New York City in 2007, which resulted in soft-tissue injuries to her back, neck and right shoulder. Defendants moved for summary judgment on the grounds that, among other things, Plaintiff failed to establish that she sustained a "serious injury" as defined by New York Insurance Law § 5102(d). The lower court denied Defendants' motion.
Defendants argued that they were entitled to summary judgment based upon an affirmed report from their expert radiologist which concluded Plaintiff's lumbar spine exhibited changes as a result of a pre-existing degenerative condition as opposed to any traumatic injury caused by the subject car accident. Defendants' expert radiologist declared that Plaintiff was suffering from a chronic, degenerative condition of her lumbar spine, and that there was no evidence that she had suffered an acute injury to her lumbar spine.
In opposition to summary judgment, Plaintiff submitted an affirmation from her treating physiatrist, Dr. Khakhar, who opined that Plaintiff's injury was caused by the accident. He based his conclusions on MRI reports, electrodiagnostic testing, medical records and physical examinations, which led to objective findings that Plaintiff's range of motion was limited for a period of five months.
The First Department concluded that Defendants had met their initial burden by establishing prima facie that Plaintiff's lumbar injury was not caused by the car accident. The burden then shifted to Plaintiff and required her to raise a triable issue of fact in order to avoid summary judgment. The majority concluded that Dr. Khakhar's objective findings coupled with Plaintiff's subjective complaints of pain were enough to "substantiate a claim of serious injury" and therefore defeat summary judgment.
The dissent cited several shortcomings in Dr. Khakhar's affirmation, which it asserted were insufficient to defeat summary judgment. Notwithstanding the shortcomings, the majority concluded that Plaintiff raised a triable issue of fact sufficient to defeat summary judgment "by attributing the injuries to a different, yet equally plausible cause," the accident, as opposed to degenerative changes cited by Defendants' expert. The majority also concluded that Plaintiff was not required to directly rebut Defendants' expert's opinion, but merely present contrary evidence which is sufficient to create a triable issue of fact.
This holding illustrates the difficulties defense counsel face in obtaining summary judgment on a "serious injury" argument, even where expert evidence establishes unrelated causes for the plaintiff's injuries.
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