A vehicle operated and owned by the defendants rear-ended a vehicle operated by plaintiff while stopped for a red light. Plaintiff driver claimed that he sustained injuries to his shoulder and spine. The two passenger plaintiffs claimed injuries to their knees and spines. Defendants moved for summary judgment and an order dismissing the complaint on the grounds that none of the three plaintiffs have sustained a “serious injury” within the meaning of New York Insurance Law Section 5102 (d). A “serious injury” is defined in New York Insurance Law Section 5102 (d) as a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
The Supreme Court, Kings County, New York in Valet v. Alam denied defendants’ motion in its entirety, determining that they failed to establish that the passenger plaintiffs did not have injuries that would qualify under the significant limitation of use category, or that they were not prevented from performing substantially all of their daily activities for 90 out of the first 180 days following the accident. The court also found that an issue of fact exists as to whether plaintiff driver sustained a permanent consequential limitation of use or a significant limitation of use of his shoulder or spine.
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