It is axiomatic that, where an issue of fact exists, a motion for summary judgment must be denied.1 In Perl v. Meher,2 the defendants met their initial burden on a summary judgment motion in an Insurance Law “threshold” motion, through the affirmation of a doctor who opined that, on the date of the Sept. 17, 2007, exam, any range-of-motion restrictions displayed by the plaintiff were self-imposed.3 In opposition, the plaintiff offered the affirmation of a different doctor, Leonard Bleicher, who found “significant limitations and deficiencies” in range-of-motion tests conducted on June 25, 2007.4 Notwithstanding that the majority termed these findings as “arguably adequate,”5 the motion was granted because of perceived shortcomings in a “contemporaneous examination” of the plaintiff that took place on May 2, 2005, shortly after the accident.
The decision turned on the requirement that a plaintiff produce evidence of a contemporaneous examination in order to defeat a threshold motion. The decision garnered a two-justice dissent which means it is appealable as of right6 to the Court of Appeals and an appeal has, in fact, been filed. The contemporaneous examination rule at issue has been adopted by the appellate divisions7 but has not yet been endorsed by the Court of Appeals. Furthermore, the Legislature is itself considering changes to the threshold provisions of the Insurance Law.8 In light of these facts, it appears that the threshold provisions of the Insurance Law are themselves ripe for a contemporaneous exam.
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