If you asked 10 random New York plaintiff's personal injury lawyers what the most common defense to the damages portion of their clients' injury claims was, I'm willing to bet at least 8 of them would say "degeneration," or, in other words, the defendants' contention that the plaintiff's injuries were the result of a degenerative condition rather than the accident that is the subject of the lawsuit.

And make no mistake about it: this defense can occasionally prove quite formidable - and even result in the dismissal of a case.

Consider, for example, the Bronx County case of Martinez-Garo v. Riverbay Corp. In that case, the plaintiff asserted that she sustained a traumatic tear of the structures in her knee as the result of her trip and fall over a defective condition at the defendants' premises. In affirming the jury's verdict which found in the defendant's favor and dismissed the action, the appellate court found that there was "overwhelming evidence that the knee injury was degenerative in nature" and therefore, the jury's response demonstrated that the requisite causal nexus between the accident and plaintiff's claimed injury was absent (see Rodriguez v Budget Rent-A-Car Sys., Inc., 44 AD3d 216, 222 [2007]; Bustamante v Westinghouse El. Co., 195 AD2d 318 [1993]).
Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer