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(NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-2828-04T22828-04T2
JOSEPH F. FEITH,
Submitted December 7, 2005 - Decided
Before Judges Axelrad and Payne.
On appeal from Superior Court of New
Jersey, Law Division, Essex County,
Gill & Chamas attorneys for appellant
(Michael J. Hanus on the brief).
Respondent has not filed a brief.
Plaintiff, subject to the limitation of lawsuit threshold established by the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a, and allegedly injured in an auto accident, appeals from a an order of summary judgment entered against him prior to the Court's decisions in DiProspero v. Penn, 183 N.J. 477 (2005) and Serrano v. Serrano, 183 N.J. 508 (2005).
In concluding that summary judgment was warranted, the motion judge accepted defense counsel's concession for purposes of the motion that evidence of a permanent injury sufficient to meet AICRA's threshold had been produced. However, the judge determined that plaintiff had failed to demonstrate that the injury had a serious impact on him and his life as required by Oswin v. Shaw, 129 N.J. 290, 294 (1992) and applied to AICRA in decisions such as James v. Torres, 354 N.J. Super. 586, 596 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003) and Rios v. Szivos, 354 N.J. Super. 578, 580 (App. Div 2002). DiProspero and Serrano have eliminated the need for such proof, as defendant now concedes. DiProspero, supra, 183 N.J. at 506; Serrano, supra, 183 N.J. at 509; see also Juarez v. J.A. Salerno & Sons, Inc., ___ N.J. ___ (2005).
Our review of the record discloses prima facie evidence of permanency consisting of an L4-5 herniation with spasms continuing more than two years after the accident. Since this is the only evidence now required under the limitation of lawsuit threshold to present a jury issue, reversal is required. Beltran v. DeLima, 379 N.J. Super. 169, 174-75 (App. Div. 2005) (according pipeline retroactivity to DiProspero and Serrano).
December 19, 2005
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