New York motorists injured by the negligence of another motorist have a constitutional right to a jury trial—but only if there is a “serious injury.” Compare N.Y. Const. art. I, §2 with Montgomery v. Daniels, 38 N.Y.2d 41, 66-67 (1975). That is the tradeoff of our no-fault insurance regime: Prompt payment regardless of fault for “basic economic loss,” such as lost wages and medical expenses, in exchange for a limited right to recover in tort for pain and suffering. See generally Hezekiah v. Williams, 81 A.D.2d 261, 264-265 (2d Dep't 1981).

The Legislature has prescribed a “serious injury” threshold that has confounded some courts. See, e.g., Brown v. Achy, 9 A.D.3d 30, 31 (1st Dep't 2004) (“elusive standard” whose application is a “sometimes frustrating task”). That threshold can be decided on papers “as a matter of law.” Licari v. Elliott, 57 N.Y.2d 230, 237-38 (1982).

The statutory language of this threshold can be murky, but one thing is clear. No matter how serious the injury is, it is not a “serious injury” if it was not caused by the collision.

The defendant must set forward “persuasive evidence” that pain and injuries are related not to the collision, but instead a preexisting or unrelated condition. Pommells v. Perez, 4 N.Y.3d 566, 580 (2005). The burden then shifts to the plaintiff to “come forward with evidence addressing [the] … claimed lack of causation.” Id. Such proof must “adequately address how [the] current medical problems, in light of [the] past medical history, are causally related to the subject accident.” Briody v. Melecio, 91 A.D.3d 1328, 1329-30 (4th Dep't 2012) (citations omitted).

Where the plaintiff “directly and adequately addresse[s] the matter of causation,” a jury question is raised. Gatti v. Schwab, 140 A.D.3d 1640, 1641 (4th Dep't 2016). Where, however, the plaintiff addresses the charge of lack of causation in “conclusory terms,” the case will be dismissed. Clarke v. D'Angelo, 109 A.D.3d 1194, 1195 (4th Dep't 2013).

What is the demarcation between a medical opinion that “directly and adequately addresse[s] the matter of causation” (see Gatti, 140 A.D.3d at 1641) and one that addresses the issue in “conclusory terms” (see Clarke, 109 A.D.3d at 1195)?

A line of recent Court of Appeals affirmances may help to define the contours.

Viability of the rejection-by-implication affidavit: 'Alvarez', 'Rivera', and 'Franklin'. Some cases suggest a medical opinion that does not “expressly address” a claim of degeneration or prior remote trauma but nevertheless “attribute[s] the injuries to a different, yet altogether equally plausible, cause, that is, the accident” will raise an issue of fact. See, e.g., Linton v. Nawaz, 62 A.D.3d 434, 440 (1st Dep't 2009) aff'd on other grounds 14 N.Y.3d 821 (2010).

Appellate courts have followed this line of authority. See generally Lee Yuen v. Arka Memory Cab, 80 A.D.3d 481, 482 (1st Dep't 2011) (collecting cases).

Appellate courts have also not followed this line of authority. For instance, in Alvarez v. NYLL Mgt. Ltd., 120 A.D.3d 1043, 1044 (1st Dep't 2014), a three-judge majority found that the “conclusory opinion” of an orthopedic surgeon that injuries were caused by the collision did not raise an issue of fact because the surgeon “failed to address or contest the detailed findings of preexisting degenerative conditions.” (citations omitted).

The dissent noted that the surgeon believed injuries were “caused by the accident, and not by degeneration.” Id. at 1045 (Moskowitz, Kapnick, JJ., dissenting). The conflicting opinions—one qualified expert claiming degeneration, the other, acute injury—presented “issues of fact [that were] inappropriate for summary adjudication.” Id. at 1045-46.

The dissent would not be vindicated. Appeal was taken as of right, and the Court of Appeals affirmed. See Alvarez v. NYLL Mgt. Ltd., 24 N.Y.3d 1191 (2015).

On the heels of Alvarez came Rivera v. Fernandez & Ulloa Auto Group, 123 A.D.3d 509 (1st Dep't 2014), a 3-2 decision where the plaintiff failed to rebut a prima facie showing of degeneration. While a treating orthopedic surgeon concluded the knee injury was “secondary” to the collision, he failed to “address or contest” an MRI report showing degenerative changes or opinion that the condition was “chronic and unrelated to the accident.” Id. at 509-10. Summary judgment was warranted.

The dissent, meanwhile, relied on a body of case law holding that “it is unnecessary for a plaintiff's expert to specifically refute defense evidence as to degeneration” because “attributing the injury to another, equally plausible cause, i.e., the accident, is sufficient to raise a triable issue of fact.” Id. at 511 (Acosta, Manzanet-Daniels, JJ.) (citations omitted). The majority countered with its own line of “recent precedents” requiring specific rebuttal, highlighting the apparent split of authority. Id. at 510 (citations omitted).

The Court of Appeals agreed with the majority. See Rivera v. Fernandez & Ulloa Auto Group, 25 N.Y.3d 1222 (2015). That made two Court of Appeals affirmances requiring specific rebuttal.

Next came Franklin v. Gareyua, 136 A.D.3d 464, 465 (1st Dep't 2016), where the defendant submitted medical proof whose “plain import” would “show[] no evidence of traumatic injury but only of degenerative conditions such as arthrosis and bursitis.” In opposition, the plaintiff relied on the affirmation of his treating surgeon, who treated him over a two-year period starting after the collision, reviewed MRI results, and performed surgery. Id. at 467 (Gische, Kapnick, JJ., dissenting). While that surgeon opined that “left shoulder injuries were causally related to the rear-end impact of the car accident” (id.), he did not “refute or address the findings of preexisting degeneration and lack of traumatic injury” (id. at 466), proving fatal.

A two-judge dissent noted that “the diagnosis rendered by plaintiff's expert contrast[ed] significantly with the one proffered by the defendants' experts.” Id. at 467 (Gische, Kapnick, JJ., dissenting). Pointing to “factual disagreement” and “varying opinions regarding causation,” the dissent would have found triable issues of fact. Id.

The Court of Appeals did not agree. Franklin v. Gareyua, 29 N.Y.3d 925 (2017). Make that three Court of Appeals affirmances requiring specific rebuttal.

'Rosa v. Delacruz'—Another divided court. On Feb. 22, 2018, the First Department released its decision in Rosa v. Delacruz, 158 A.D.3d 571 (1st Dep't 2018). According to the unanimous panel, the defendants established that left shoulder injuries were not related to the collision by submitting, inter alia, “the MRI report of [the] plaintiff's radiologist, who found multiple degenerative cysts, and no torn tendons.” Id. at 571. Relying on Rivera, discussed above, the court found that the plaintiff failed to raise an issue of fact. While the treating surgeon “opined that tears found during surgery were causally related to the accident,” he did not “address[] the findings of degeneration in the radiologist's MRI report, or explain[] why the tears and physical deficits … were not caused by the preexisting degenerative conditions.” Id. at 571-72 (citations omitted).

The plaintiff sought leave to appeal to the Court of Appeals, which was granted. The memorandum decision was released Oct. 23, 2018.

This time, the Court of Appeals was split. A bare majority of the court voted to affirm the order of dismissal, finding that the opposing papers “failed to acknowledge, much less explain or contradict” the findings of degeneration. Rosa v. Delacruz, 2018 NY Slip Op 07040, at *1 (2018). For this reason, the opinion of causal relation by a treating surgeon was deemed “purely conclusory.” Id.

The dissenters saw otherwise. Judge Eugene Fahey, joined by Judges Jenny Rivera and Rowan Wilson, recognized “conflicting expert opinions,” which was “a matter to be resolved by a trier of fact.” Id. The opinion of the treating surgeon—relating a rotator cuff tear to the collision—was based on a review of medical records, “and personal observations” made “during the arthroscopic procedure in which he repaired [the] plaintiff's left shoulder.” Id.

The split panels in Alvarez, Rivera, Franklin, and now divided court in Rosa, illustrate a tension in “threshold” motion practice. The procedural posture—summary judgment—is a place of “issue finding rather than issue determination.” Lugo v. LJN Toys, Ltd., 146 A.D.2d 168, 169 (1st Dep't 1989) (citation omitted). At the same time, the Legislature has tasked our courts with the gatekeeping function of “keep[ing] cases that belong in no-fault out of the courthouse.” Licari, 57 N.Y.2d at 237-38. The substantive law thus involves a jurisprudence that has been, at times, “less indulgent” when “assessing the quality of proof needed to defeat a summary judgment motion.” Ramkumar v. Grand Style Transp. Enters., 22 N.Y.3d 905, 907 (2013) (Smith, J., dissenting).

In other contexts, “generally competent” expert opinions have defeated summary judgment, even where those opinions are “arguably refuted” by other evidence. Lopez-Viola v. Duell, 100 A.D.3d 1239, 1242 (3d Dep't 2012); see also Rosa v. Da Ecib USA, 259 A.D.2d 258, 259 (1st Dep't 1999) (noting that “[a] plaintiff's evidence in opposition to a summary judgment motion need not conclusively prove [the] case”).

It has been observed, in these very pages, that the threshold motion has in some ways evolved into a distinct procedural remedy unto itself, where matters that ordinarily affect the weight of evidence can sometimes go to its sufficiency. See Morrissey, K., “Insurance Law 'Threshold' Rules Encroach on Trial Practice,” N.Y.L.J., May 19, 2010, at 4, col. 1 (characterizing “dispositive criteria” as “an unusual procedural feature”).

Against this backdrop, going forward, treating doctors should specifically address evidence of a preexisting condition.

Matthew J. Kaiser is an attorney at William Mattar, P.C., where he focuses on civil appeals and complex motion practice. He practices in the firm's Rochester office.