“the case is already in the gate, so to speak”

Rubin v SMS Taxi Corp., 2010 NY Slip Op 02414 (App. Div., 1st, 2010)

As the motion court found, defendants met their initial burden of
producing evidentiary proof in admissible form sufficient to show that
plaintiff's neck and back injuries did not meet any serious injury
thresholds. Plaintiff's medical submissions were devoid of information
to substantiate his 90/180 claim. The plaintiff also failed to raise an
issue of fact as to any other category from Insurance Law § 5102 because
he did not show: (1) what medical tests were performed, (2) the
objective nature of the tests, (3) what the normal range of motion
should be and (4) the significance of plaintiff's limitations. Plaintiff
thus failed to raise an issue of fact as to the claims for permanent
loss, permanent consequential limitation and significant limitation of
use of a body part, system or function (see Marsh v City of New York, 61 AD3d 552
[2009]; Valentin v Pomilla, 59 AD3d 184, 186 [2009]).
Further, plaintiff's unsworn affirmation is insufficient to explain his
cessation of treatment (see Pommells v Perez, 4 NY3d 566, 574

Plaintiff also failed to offer the requisite competent medical
proof of incapacity during 90 of the first 180 days following the
accident (see Moses v Gelco Corp., 63 AD3d 548 [2009];
Dr. Valderrama's assertion that he advised plaintiff to take off from
work until at least July 10 after [*2]the
June 16 accident does not satisfy this requirement. Plaintiff's claimed
inability to perform his job was also not supported by documentation
from his employer (see Ortiz v Ash Leasing, Inc., 63 AD3d 556

However, the motion court found that plaintiff did meet the
serious injury threshold on his claim for significant disfigurement of a
body part in that the scar on his face "is permanent, discolored and no
treatment can improve it." This portion of the motion court's ruling is
not an issue on appeal. At issue on the motion for clarification or
reconsideration is whether or not plaintiff can still present to the
jury the injuries the court found did not meet the "serious injury"
threshold within the meaning of Insurance Law § 5102(d). "Once a prima
facie case of serious injury has been established and the trier of fact
determines that a serious injury has been sustained, plaintiff is
entitled to recover for all injuries incurred as a result of the
accident" (Obdulio v Fabian, 33 AD3d 418, 419 [1st Dept
2006]; see also Prieston v Massaro, 107 AD2d 742 [2d Dept 1985]; Marte v New York City Transit Auth., 59 AD3d 398,
399 [2d Dept 2009]). Consequently, plaintiff is entitled to present his
claim involving facial scarring to meet the threshold for serious
injury under Insurance Law § 5102(d)(iii) (significant disfigurement).
Once a jury determines that plaintiff has met the threshold for serious
injury, the jury may award damages for all of plaintiff's injuries
causally related to the accident, even those not meeting the serious
injury threshold. Whether plaintiff's back and neck injuries were
causally related to the accident are questions of fact for the jury to

The legislative intent of New York's No-Fault law was to
"significantly reduce the number of automobile personal injury cases
litigated in the courts," (Licari v Elliot, 57 NY2d 230, 236
[1982]) and to "weed out frivolous claims and limit recovery to
significant injuries" (Dufel v Green, 84 NY2d [1995]).
Accordingly, once an alleged claim meets at least one of the serious
injury thresholds, the statute's gate keeping function, to reduce
caseloads by limiting what the courts adjudicate, is satisfied. As the
case is already in the gate, so to speak, judicial economy is no longer a
reason to preclude plaintiff from presenting to the jury all injuries
causally related to the accident. This comports with the general
principle that a plaintiff is entitled to recover damages that justly
and fairly compensates him or her for all injuries proximately
caused by the accident.

The court denied the motion for reconsideration or clarification
of the initial order, but because it did address the merits in adhering
to the initial determination, the subsequent order is appealable (see Nawi v Dixon, 59 AD3d 363, 364 [2009]).

The bold is mine.

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