Rely on plaintiff’s records at your own peril, but only if your insurance company doctor is less than honest.

JT noted an earlier case with similar facts. I think I posted it too, but I don't feel like looking around for it.

Ortiz v Orlov2010 NY Slip Op 06623 (App. Div., 2nd 2010)

The defendants, all of whom relied on the same submissions in support of their respective motions, failed to meet their prima facie burdens of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of their motions, they relied upon, inter alia, the medical reports of the plaintiff's treating physicians. At least two of those reports revealed that the plaintiff had significant limitations in her cervical and lumbar spine range of motion more than seven months post-accident (see Guerrero v Bernstein, 57 AD3d 845Mendola v Demetres, 212 AD2d 515).

Since the defendants did not meet their prima facie burdens, it is unnecessary to decide whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Guerrero v Bernstein, 57 AD3d at 845; Coscia v 938 Trading Corp., 283 AD2d 538). 

The bold is mine.  No-fault types should pay attention.  Sure, this isn't really procedural.  It will be.  Eventually.  I won't explain.  Sorry.



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