Appellate Division Reverses Trial Court – Awards Summary Judgment On Damages In Motor Vehicle Case Involving Surgery

Sherri A. Jayson recently won an appeal in the Appellate Division, Second Department in a case venued in Kings County, resulting in dismissal of this lawsuit. The plaintiff was struck by the defendant’s vehicle while crossing the street. As a result of the accident, the plaintiff claimed that she sustained a tear and impingement to her left shoulder for which she underwent surgical repair.

Sherri originally filed a motion for summary judgment with trial court, arguing that plaintiff’s alleged injuries were not caused by the accident and, alternatively, that her injuries did not constitute “serious injuries” as defined by New York Insurance Law § 5102(d).

Relying solely on the records of the plaintiff’s treating providers in support of the motion, the trial court (Wooten, J.) denied the motion for summary judgment holding that the defendants failed to make a prima facie case of entitlement to summary judgment when they failed to include certified copies of the plaintiff’s medical records.

Sherri filed an appeal of the trial court’s decision arguing that a defendant may rely solely on the unsworn and uncertified records of a plaintiff’s treating physicians to make a prima facie showing of entitlement to summary judgment. The Appellate Division agreed. It reversed the decision of the trial court stating that the trial court “should have granted the defendants’ motion for summary judgment dismissing the complaint” based on a lack of proof both as to causation and serious injury due to an unexplained gap in treatment.