Velez v. Cohan
| Decision Date | 21 April 1994 |
| Parties | Bernice VELEZ, Plaintiff-Respondent, v. Larri COHAN, et al., Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
Before SULLIVAN, J.P., and CARRO, ELLERIN, ASCH and TOM, JJ.
Order, Supreme Court, Kings County (James H. Shaw, Jr., J.), entered on or about January 22, 1992, which denied the motion of defendants Anna and Jacek Nowaks and the cross-motion of defendants Larri Cohan and Grasso Public Carting Co., Inc., for summary judgment dismissing the complaint and granted plaintiff's cross motion against the Nowaks defendants to the extent of directing them to appear for examination before trial, unanimously reversed, on the law, plaintiff's motion denied, defendants' motion and cross-motion granted, and the complaint dismissed, without costs.
In order to effectuate the purpose of no-fault legislation to reduce litigation, a court is required to decide, in the first instance, whether a plaintiff has made out a prima facie case of "serious injury" sufficient to satisfy the statutory requirements (Licari v. Elliott, 57 N.Y.2d 230, 237, 455 N.Y.S.2d 570, 441 N.E.2d 1088). If the court finds that the evidence would not warrant a jury finding that the injury fits within the statutory definition, the plaintiff has no judicial remedy and the action should be dismissed.
Insurance Law § 5102(d) defines a serious injury for this purpose as
a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
In this case, the evidence presented by plaintiff showed that, as a result of whiplash injuries suffered in an automobile accident on February 22, 1989, two medical practitioners diagnosed her as suffering from back pain, one to the extent that she was disabled as of September 1, 1989, the other calling her condition chronic. However, both of these diagnoses...
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