Legal Alerts

New York Team’s Win in Accident Case Provides Roadmap for ‘Serious Injury’ Summary Judgment Motions

New York, N.Y. (May 3, 2024) - New York Partners Adam Schwartzstein, James Strauss, and Jennifer Harris recently secured a dismissal of a personal injury plaintiff’s complaint on summary judgment, with a New York federal judge agreeing with their argument that the plaintiff had not suffered a “serious injury” as defined by New York Insurance Law §5102(d).

In an extensive 27-page decision, Hon. Rachel Kovner of the U.S. District Court for the Eastern District of New York held that despite the plaintiff having had years of medical treatment along with a surgery to his left shoulder, he nevertheless failed to meet the standards of a “serious injury” given the manner of his doctors’ range of motion testing, his doctors’ failure to prove that the plaintiff’s injuries were causally related to the accident, the plaintiff’s quick return to work, and the defendants’ biomechanical expert report that the plaintiff's injuries could not have been caused by the accident at issue. The plaintiff used the affidavits of three medical experts to try to defeat the motion.

The Plaintiff's Accident and His Treatment

On August 15, 2019, the plaintiff’s car was rear-ended while stopped. He claimed his body was “forced forward abruptly” when the accident occurred. He stated that he did not feel any pain immediately post-accident and did not go to the hospital, despite an ambulance and police arriving at the scene.

The day after the accident, the plaintiff visited a doctor and started acupuncture and chiropractic treatment. Approximately one month later the plaintiff had MRIs of his back taken, which revealed disc bulges and herniations. Three months post-accident he consulted at a surgery center for his back and right shoulder. In December 2019, he saw a doctor who determined the plaintiff had decreased range of motion in his back. 

From July 2020 to June 2021, the plaintiff was treated for pain in both shoulders and his back. Ultimately, in May 2021, the plaintiff had left shoulder arthroscopy and labral repair. Further, in August and October 2021 (more than two years post-accident), The plaintiff went to see yet another doctor, who diagnosed him with rotator cuff injuries and disc herniations and bulges. That doctor performed both active and passive range of motion assessments and he concluded that the accident caused the plaintiff’s injuries. 

At the close of discovery Lewis Brisbois moved for summary judgment, arguing that the plaintiff did not suffer a “serious injury” as a result of his accident and that his claimed injuries were not causally related to the accident. In support of the defendants’ motion the Lewis Brisbois team presented the court with: (i) an expert report from Dr. James Kipnis, who performed an independent medical examination of the plaintiff; and (ii) an expert report from Dr. Jacqueline Lewis Devine, a biomechanical expert, to evaluate the severity of the accident involving the plaintiff. 

The Court’s Decision

Judge Kovner issued her memorandum decision and order in late March. As noted by Judge Kovner in her decision, the purpose of Insurance Law §5012(d) is to “weed out frivolous claims and limit recovery to significant injuries.” Judge Kovner further noted that while Insurance Law §5012(d) lists nine categories of “serious injury,” in this case, only three categories were at issue – namely, whether the plaintiff suffered: (i) a “permanent consequential limitation of use of a body organ or member”; (ii) a “significant limitation of use of a body function or system”; or (iii) 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 injury.”

Regarding the plaintiff's injuries, Judge Kovner noted in her decision that the defendants’ expert report from Dr. Kipnis indicated that the plaintiff had full range of motion in his right shoulder; his range of motion in his cervical and lumbar back were “within normal limits”; and that at his examination, he had no complaints as to his neck, back and right shoulder. Dr. Kipnis’ range of motion testing on the plaintiff’s left shoulder, however, did indicate injuries.

In response, the plaintiff submitted medical records regarding range of motion testing. With respect to the range of motion (“ROM”) testing from one Dr. Steven Waldman, Judge Kovner held that Dr. Waldman’s ROM testing was “not sufficiently objective.” In particular, Judge Kovner noted that ROM testing can be performed either by active or passive tests. In an active ROM test, the patient is requested to unilaterally move his or her particular body part, making the ROM testing entirely subjective based on the patient’s efforts. But in a passive ROM test, the doctor moves the injured body part until the motion is restricted or pain occurs, thus taking away the subjective nature of an active ROM test. Because Dr. Waldman performed only active ROM testing, Judge Kovner ruled that Dr. Waldman’s conclusions were “not sufficiently objective to support plaintiff’s prima facie case.” However, the court did accept the ROM findings of another of the plaintiff’s doctors, Dr. Mark McMahon.

Notwithstanding the medical conclusions concerning ROM testing on the plaintiff’s shoulders and back, Judge Kovner held that the plaintiff failed to prove that he suffered a permanent limitation caused by the accident. 

Moreover, Judge Kovner held that the defendants established that the plaintiff’s injuries were not causally related to the accident. Specifically, Dr. Kipnis noted that the findings on the plaintiff's right shoulder MRI and the disc bulges in the 43-year old plaintiff “are common and are not causally related” to the accident. Given the absence of acute medical attention at the accident scene and the lack of a needed X-ray, no causal relationship between the accident and plaintiff’s disc herniation existed, Judge Kovner found. In addition, Judge Kovner noted that plaintiff never complained about injury to his left shoulder until more than a year post-accident, thus supporting a lack of causality.

Furthermore, Judge Kovner noted that three doctors used by the plaintiff to oppose the defendants’ threshold motion failed to delineate how they came to the conclusion that the plaintiff’s injuries were causally related to the accident. Indeed, Judge Kovner stated in her decision that “a mere recitation of plaintiff’s own ‘purported causation without any scrutiny or questioning’ is also not sufficient to constitute nonconclusory medical testimony.”

In addition, Judge Kovner’s decision regarding a lack of causation between the plaintiff’s accident and his purported injuries was significantly informed by the biomechanical expert report submitted by the defendants, which concluded that, with respect to the plaintiff’s cervical and lumbar spine and both shoulders, the car accident was insufficient to serve as the basis “for any of plaintiff’s alleged injuries.” Indeed, Judge Kovner noted that “courts in New York have routinely relied on biomechanical expert reports in finding defendants to have made out a prima facie case for lack of causation.”

Finally, Judge Kovner held that the plaintiff did not sustain a 90/180 day injury stemming from the accident. As an example, Judge Kovner cited cases saying that if a plaintiff returns to work within 90 days of the accident, there is a presumption under the 90/180 rule that the plaintiff did not sustain a “serious injury.”  Here, the plaintiff returned to work shortly after the accident but claimed he was “severely limited” as to what work he could perform. Judge Kovner rejected this argument, as well as the plaintiff’s argument that he lost his job more than two years after the accident because he could not adequately perform his work duties.


In essence, Judge Kovner adopted all the arguments that the Lewis Brisbois team made in their summary judgment motion papers. The decision and order provides an excellent roadmap for making a “serious injury” motion for summary judgment. 

The fact that a surgery is performed should never be a deterrent to making a “serious injury” summary judgment motion. Oftentimes minor accidents seem to lead to numerous surgeries.  With the right arguments and top-notch experts, threshold motions like the one made in this matter should be filed.

For more information about the decision, contact the attorneys involved. Visit our Transportation Practice page to learn more about our capabilities in this area. 

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