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December 2011 Automobile Insurance Law Update

November 22, 2011 - With their recent decision in Perl v. Meher, the New York State Court of Appeals has provided additional guidance to plaintiff's attorneys in dealing with defense Motions for Summary Judgment on the always troublesome "serious injury threshold". 

As many personal injury practitioners know, the Court of Appeals'  2002 decision in the Toure v. Avis Rent A Car has been used by the defense bar to create the illusion that in order to withstand summary judgment a plaintiff's doctor must provide quantitative measurements of an injured party's restricted range of motion which must be "contemporaneous"  to the accident at issue.  The COA's decision in Perl has removed this illusion as the Court held that Toure imposed no such requirement of contemporaneous quantitative measurements and that they also saw no justification for adding such a requirement to the evaluation of whether the threshold is met.

The Court went on to recognize the real world situation presented by the fact that most doctors are treating their patients in an effort to help them recover and not in an effort to create a record to help their lawyers survive a Motion for Summary Judgment months or years later.  To this point, the Court stated- "Potential plaintiffs should not be penalized for failing to seek out, immediately after being injured, a doctor who knows how to create the right kind of record for litigation.  A case should not be lost because the doctor who cared for the patient initially was primarily, or only, concerned with treating the injuries.  We therefore reject a rule that would make contemporaneous quantitative measurements a prerequisite to recovery."  To read the Perl decision in its entirety click here.

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