Perl v Meher, 2011 NY Slip Op 08452 (2011)
In Pommells v Perez (4 NY3d 566, 571 ), then Chief Judge Kaye described the working of the No-Fault Law (officially the Comprehensive Motor Vehicle Insurance Reparations Act, Insurance Law §§ 5101 et seq.) by saying: "Abuse . . . abounds." That included, she said, "abuse . . . in failing to separate 'serious injury' cases" from others (id.).
No-fault abuse still abounds today. In 2010, no-fault accounted for 53% of all fraud reports received by the Insurance Department (Annual Report to the Governor and the Legislature of the State of New York on the Operations of the Insurance Frauds Prevention Act at 23). "Serious injury" claims are still a source of significant abuse, and it is still true, as it was in 2005, that many courts, including ours, approach claims that soft-tissue injuries are "serious" with a "well-deserved skepticism" (Pommells, 4 NY3d at 571).
Here, we confront three cases in which the Appellate Division rejected allegations of serious injury as a matter of law. We conclude that we must reverse in two of the cases, Perl v Meher and Adler v Bayer, because the evidence plaintiffs have put forward is legally sufficient. We affirm in the third case, Travis v Batchi.
In finding that two of these three claims survive our scrutiny, we by no means signal an end to our skepticism, or suggest that that of lower courts is unjustified. There are cases, however, in which the role of skeptic is properly reserved for the finder of fact, or for a court that, unlike ours, has factual review power.
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