Appellate Division, Fourth Department — Motor Vehicle Accident: Downie v. McDonough

Appellate Division, Fourth Department

Motor Vehicle Accident

90/180 Category — Sufficient Evidence

Downie v. McDonough
CA 13-01511
Appealed from Supreme Court, Niagara County

Background: The plaintiff commenced a personal injury action following a motor vehicle accident. The defendant appealed from the denial of his motion to dismiss on the ground that the plaintiff did not suffer a serious injury in the 90/180 category.

Ruling: The Appellate Division reversed. The court held that the defendant’s orthopedic surgeon, who examined the plaintiff less than three months after the accident, concluded that there was no objective evidence to substantiate the plaintiff’s subjective complaints of pain. The Appellate Division further concluded that the plaintiff’s submission was insufficient as it was merely evidence of a herniated disc without additional objective medical evidence establishing that the accident resulted in significant physical limitations.

Cory J. Weber of Rupp, Baase, Pfalzgraf, Cunningham & Coppola for the defendant-appellant; Ashley Fasso of William K. Mattar for the plaintiff-respondent