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PSYCHOLOGICAL INJURY UNDER THE SERIOUS INJURY REQUIREMENT OF THE INSURANCE LAW, PART II
By: Michael A. Callinan, Esq.

FOR THE DEFENSE

PSYCHOLOGICAL INJURY UNDER THE SERIOUS INJURY REQUIREMENT OF THE INSURANCE LAW
PART II

By: Michael A. Callinan, Esq.
Bruno, Gerbino & Soriano, LLP
Melville, New York



Several months ago, it was reported in this column concerning an attempt made by a plaintiff’s attorney in seeking to establish a serious injury in a standard automobile negligence case under section 5102(d) of the Insurance Law by claiming that the plaintiff suffered only a “psychological” injury.

At the time of the publication, the defendants’ motion for summary judgment on the issue of serious injury was still pending before the Court. On August 31, 2006, the Honorable John J.J. Jones, Jr., granted the defendant’s summary judgment as a matter of law and dismissed plaintiff’s complaint, in its entirety, and with prejudice.

While the Court found that the plaintiff presented a sympathetic case with regard to the alleged “psychological” injury, there was simply no competent or credible evidence presented to the Court to substantiate same.

In opposition to the defendants’ motion for summary judgment, plaintiff submitted hospital records, numerous medical reports, and other documents, none of which set forth any objective medical evidence, based upon a recent examination that verified plaintiff’s subjective complaints of pain and limitation of movement. See Tudisco v. James, 28 A.D.3d 536 (N.Y. App. Div. 2nd Dept. 2006); Farozes v Kamran, 22 A.D.3d 458 (N.Y. App. Div. 2nd Dept. 2005); Ali v Vusquez, 19 A.D.3d 520 (N.Y. App. Div. 2nd Dept. 2005).

Further, the Court held that the purported “affirmation” submitted by plaintiff’s treating psychologist was not competent evidence. The Court held that since the psychologist was not a “physician, osteopath or dentist” same could not be affirmed to be true under CPLR 2106. In order for the plaintiff to use the psychologist in opposition to the defendants’ motion for summary judgment, the plaintiff had to submit a sworn “affidavit” from the psychologist, not an “affirmation”. By virtue of the fact that the plaintiff could not substantiate any claim of injury, the Court was required to dismiss plaintiff’s complaint.




This case once again reaffirms the proposition that in order to overcome a defendant’s prima facie entitlement to summary judgment on the issue of serious injury, a plaintiff must put forth competent and credible evidence to substantiate a claimed injury or else the Court will grant the defendant summary judgment and dismiss the complaint.

Michael A. Callinan, Esq., is a 2002 graduate of Hofstra University School of Law and an associate at Bruno, Gerbino & Soriano, LLP, located in Melville, New York.

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