Harvey v. New York Foundling Hosp.
Docket Index No. 453052/21|Appeal No. 6485|Case No. 2025-03954|
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- Filed
- Jurisdiction
- New York
- Court
- Appellate Division of the Supreme Court of the State of New York
- Type
- Opinion
- Case type
- Civil
- Disposition
- Affirmed
- Citation
- 2026 NY Slip Op 02601
- Docket numbers
- Index No453052/21Appeal No6485Case No2025-03954
Appeal from an order granting defendant's motion for summary judgment dismissing a personal-injury complaint for failure to establish a serious injury under Insurance Law § 5102(d).
Summary
The Appellate Division, First Department affirmed the trial court's grant of summary judgment dismissing Harvey's personal-injury complaint arising from a May 2020 motor vehicle accident. Defendants (the New York Foundling Hospital and others) presented expert reports and MRI comparisons showing plaintiff's cervical, lumbar, and right-shoulder conditions were preexisting, chronic, and degenerative from a prior March 30, 2019 crash, not caused by the 2020 accident. The court held plaintiff's expert failed to meaningfully dispute the prior-accident causation, so she could not meet the statutory threshold for a serious injury under Insurance Law § 5102(d).
Issues Decided
- Whether plaintiff sustained a serious injury as defined by Insurance Law § 5102(d) in the May 2020 motor vehicle accident.
- Whether defendants met their prima facie burden at summary judgment by showing plaintiff's injuries were preexisting and not caused by the 2020 accident.
- Whether plaintiff's expert raised a triable issue of fact about causation given a prior March 30, 2019 motor vehicle accident.
Court's Reasoning
Defendants supported their motion with expert reports comparing pre- and post-accident MRIs, concluding the plaintiff's cervical, lumbar, and shoulder conditions were chronic, degenerative, and preexisting. The court found those submissions sufficient to meet defendants' prima facie burden. Plaintiff's expert did not address or distinguish the earlier March 30, 2019 accident or explain why it could be ruled out as the source of her alleged limitations, so she failed to create a triable issue of causation and therefore could not satisfy the statutory serious-injury threshold.
Authorities Cited
- Insurance Law § 5102(d)
- Monahan v Reyes184 AD3d 460 (1st Dept 2020)
- Jimenez v Polanco88 AD3d 604 (1st Dept 2011)
- Sanchez v Steele149 AD3d 458 (1st Dept 2017)
Parties
- Appellant
- Virginia A. Harvey
- Respondent
- The New York Foundling Hospital
- Judge
- Webber, J.P.
- Judge
- Mendez
- Judge
- Rodriguez
- Judge
- O'Neill Levy
- Judge
- Michael
- Attorney
- Pollard Law Group, P.C. (Jonathan C. Pollard of counsel)
- Attorney
- Law Offices of Galvano & Xanthakis (Matthew D. Kelly of counsel)
Key Dates
- subject accident
- 2020-05-01
- prior accident
- 2019-03-30
- trial court order entered
- 2025-03-24
- appellate decision entered
- 2026-04-28
What You Should Do Next
- 1
Consider applying for leave to appeal
If plaintiff wants to continue, consult counsel about seeking permission to appeal to the New York Court of Appeals and evaluate potential grounds for discretionary review.
- 2
Review expert opinions
Have new or existing medical experts prepare detailed reports that directly address the prior 2019 accident and explain why the 2020 accident, rather than preexisting conditions, caused the injuries.
- 3
Evaluate settlement options
Discuss with counsel whether any settlement remains possible given the adverse summary judgment ruling and the costs and chances of further appellate review.
Frequently Asked Questions
- What did the court decide?
- The court affirmed the dismissal of Harvey's lawsuit because she failed to show her injuries were caused by the May 2020 crash rather than a prior 2019 crash, so she did not meet the statutory serious-injury threshold.
- Who is affected by this decision?
- The decision affects the plaintiff, Virginia Harvey, whose claim was dismissed, and serves as precedent for similar cases where defendants show preexisting degenerative conditions.
- Why did the plaintiff lose at summary judgment?
- Defendants provided expert MRI comparisons showing preexisting, chronic conditions, and the plaintiff's expert did not explain or dispute that the earlier 2019 accident could have caused the current symptoms.
- Can this decision be appealed further?
- Possibly; the next step would be applying for leave to appeal to the New York Court of Appeals, subject to the court's discretionary review rules.
The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.
Full Filing Text
Harvey v New York Foundling Hosp. - 2026 NY Slip Op 02601 Harvey v New York Foundling Hosp. 2026 NY Slip Op 02601 April 28, 2026 Appellate Division, First Department Virginia A. Harvey, Appellant, v The New York Foundling Hospital et al., Respondents. Decided and Entered: April 28, 2026 Index No. 453052/21|Appeal No. 6485|Case No. 2025-03954| Before: Webber, J.P., Mendez, Rodriguez, O'Neill Levy, Michael, JJ. Pollard Law Group, P.C., New York (Jonathan C. Pollard of counsel), for appellant. Law Offices of Galvano & Xanthakis, Staten Island (Matthew D. Kelly of counsel), for respondents. Order, Supreme Court, New York County (James G. Clynes, J.), entered March 24, 2025, which granted defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d), unanimously affirmed, without costs. Supreme Court correctly found that defendants established that plaintiff did not suffer a serious injury to her right shoulder, head, and spine related to the subject May 2020 motor vehicle accident, but rather had preexisting injuries for which she received treatment after an earlier motor vehicle accident on March 30, 2019. Defendants met their prima facie burden by submitting expert reports which compared MRI films of plaintiff's cervical and lumbar spine before and after the subject accident and concluded that plaintiff's alleged injuries were preexisting, chronic, and degenerative, and not causally related to the May 2020 accident ( see Monahan v Reyes , 184 AD3d 460, 460 [1st Dept 2020]). As to plaintiff's right shoulder, defendants' experts opined that the MRI did not indicate a labral tear and that any discomfort was chronic and inflammatory in nature ( see id. ). In opposition, plaintiff failed to raise a triable issue of fact. Her expert's affirmation did not address a prior motor vehicle accident "and did not purport to explain why the prior accident could be ruled out as the cause of her current alleged limitations" ( Jimenez v Polanco , 88 AD3d 604, 604 [1st Dept 2011]; see Monahan , 184 AD3d at 461). In the absence of any issue of fact as to whether plaintiff's injuries were causally related to the accident, the court properly dismissed the 90/180-day claim ( see Sanchez v Steele , 149 AD3d 458, 459 [1st Dept 2017]; Jimenez , 88 AD3d at 604). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: April 28, 2026