In Vaughan v. Leon,1 the Appellate Division, First Department, considered whether the plaintiff’s expert affirmation must “specifically address” a defense expert’s finding of degeneration in order to defeat a motion for summary judgment under the ‘threshold’ provisions of the Insurance Law. In a 3-2 decision the Vaughan court concluded that the plaintiff had raised an issue of fact despite the fact that her doctor did not specifically address the finding of the defendant’s expert that plaintiff had a preexisting, degenerative condition. Because the decision gathered a two-justice dissent, it is appealable as of right to the Court of Appeals.2
In November 2011, the Court of Appeals, in Perl v. Meher,3 negated what was the defense bar’s most common basis for summary judgment: the requirement of contemporaneous range-of-motion testing. This loss means that summary judgment motions alleging preexisting conditions will increase in frequency and the extent to which these allegations must be addressed will become an acute question.
