Andrew C. Kaye Obtains Summary Judgment on a Traumatic Brain Injury Claim Alleged Under N.Y. 5102(d), New York’s “Serious Injury” Law

In a matter pending in Supreme Court, Bronx County, Andrew C. Kaye obtained summary judgment on behalf of a commercial trash removal company and its driver in a motor vehicle accident case where plaintiff was alleging a traumatic brain injury.

Plaintiff alleged that on May 1, 2007 he was an un-seatbelted back seat passenger in a taxi that was struck in the rear by defendant’s commercial garbage truck.  Plaintiff claims his head struck the partition resulting in, inter alia, a traumatic brain injury.

Plaintiff was represented by a law firm that specializes in prosecuting traumatic brain injuries. Knowing therefore that plaintiff’s counsel likely had the doctors and affidavits necessary to create a question of fact on the medicine, we approached the motion from a different angle, arguing plaintiff lacked evidence a traumatic brain injury contemporaneous with the accident.  Since there were no records to which plaintiff’s experts could point to suggest otherwise, plaintiff was not able to oppose the motion and the Court granted summary judgment.  There were no settlement discussions during the pendency of the motion. However, before making the motion, plaintiff’s demand was “seven figures”.