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Significant Limitation Need Not Be Permanent to Constitute Serious Injury; Recent Physical Examination Is Not Prerequisite for Overcoming Summary Judgment

In reversing summary judgment granted to the defendant, the First Department noted that a significant limitation of use of a body function need not be permanent to constitute a serious injury within the meaning of Insurance Law 5102, and the First Department further explained that its precedent in this area should not be read to require a recent physical examination to overcome summary judgment:

…”[A] significant limitation [of use of a body function or system] need not be permanent in order to constitute a serious injury”…. Indeed, a ” permanent consequential limitation’ requires a greater degree of proof than a significant limitation’, as only the former requires proof of permanence”…. “Insurance Law § 5102(d) does not expressly set forth any temporal requirement,” although assessment of the limitation’s significance does require consideration of its duration in addition to its extent and degree…. Therefore, the lack of a recent examination, while sometimes relevant, is not dispositive by itself in determining whether a plaintiff has raised a triable issue of fact in opposing a defendant’s prima facie evidence under the “significant limitation” category.  Our decision in Townes v Harlem Group, Inc. (82 AD3d 583, 583-584 [1st Dept 2011]), should not be read to require a plaintiff to submit a recent examination as a necessary prerequisite to overcoming judgment as a matter of law in every instance of a claim under the “significant limitation” category. To the extent that the Townes Court did require a recent examination, it was due to the specific facts present in that case. Furthermore, the precedents that decision relied upon in requiring a recent examination do not specifically address the degree of proof necessary for a “significant limitation” claim as opposed to a “permanent consequential limitation” claim, instead conflating these two categories of serious injury…. Vasquez v Almanzar, 2013 NY Slip Op 04561, 1st Dept, 6-18-13

 

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