Plaintiff was involved in an automobile collision. Plaintiff, in his mid-70s at the time of the accident, alleged in his bill of particulars that he suffered various physical injuries involving the spine plus serious psychological injuries, including post traumatic stress disorder, depression, anxiety, an inability to concentrate and a phobia of driving.

Defendant moved for summary judgment on the issue of the no-fault threshold, submitting the affirmed reports of a neurologist and an orthopedist who concluded there were no objective physical findings the plaintiff sustained any substantial or permanent injuries or disability as a result of the accident.

Defendant did not offer any evidence regarding plaintiffs claim of psychological injuries. Nevertheless, the court finds that defendant presented sufficient proof in admissible form to shift the burden to plaintiff to raise a triable issue of fact in response to this threshold motion.

In his opposition, plaintiff does not attempt to contradict defendants evidence regarding serious physical injuries as a threshold question, thus conceding the issue. Plaintiff addresses only the psychological aspects of his claim.

On the other hand, plaintiffs expert is not a psychiatrist whose opinion diagnosing post-traumatic stress disorder would raise a material issue of fact constituting a serious injury within the meaning of New Yorks no-fault law.

Disagreeing with case law to the contrary, the court determines that findings by a clinical psychologist alone are sufficient to defeat a motion for summary judgment.

Defendants assertion that plaintiffs submissions are inadmissible because plaintiffs psychologist appeared to rely upon various un-sworn reports of prior treatment in reaching her conclusion is not persuasive. In the case at bar, plaintiffs expert performed several psychological tests which lead to her opinion that the accident was a proximate cause of plaintiffs psychological injuries.

Furthermore, it was essential for him to review prior reports whether affirmed or not and to otherwise obtain an understanding from plaintiff concerning his complaints in order to properly treat him. To hold otherwise would penalize plaintiff for seeking treatment with a psychologist, as opposed to a psychiatrist or other medical doctor.

By all accounts, prior to the accident plaintiff was a very active senior citizen. It will be up the jury to address the question of whether any of plaintiffs psychological problems are the result of the aging process or directly attributable to the accident.

Defendants motion was denied.

Comment: Well, this judge handed the defendant a perfect grounds for appeal when he wrote that he was disagreeing with case law to the contrary. The preponderance of case law in New York holds that in a negligence lawsuit, a claim of psychological injuries cannot stand without proof of a physical injury as well. The reasoning is that an accident which is not serious enough to cause significant physical injury should not support a claim of serious psychological injury. [IA]

Lysniak v. Boursiquot, NYLJ 2/14/06 (Supreme Court, Nassau County) (GALASSO, j)