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Very interesting discussion on PerlJuly 17, 2017

Santos v Traylor-Pagan, 2017 NY Slip Op 05502 (1st Dept. 2017)

“Plaintiff failed to raise a triable issue of fact as to whether his carpal tunnel syndrome was causally related to the accident (Perl v Meher, 18 NY3d 208, 217-218 [2011]). This Court, in Rosa v Mejia (95 AD3d 402, 404 [1st Dept 2012]), opined that the decision in Perl did not abrogate the need for at least a qualitative assessment of injuries soon after an accident. This Court then affirmed the dismissal of a plaintiff’s case where the plaintiff had presented no admissible proof that she saw any medical provider for any evaluation until 5½ months after her accident (id.). Plaintiff here was treated on the date of the accident and released from the emergency room at Westchester Medical Center, where he was diagnosed with a right elbow laceration, which was treated with three sutures. He never had any further medical treatment until he first saw an orthopedist 13½ months after the accident, and then allegedly had a few months of physical therapy, although there are no details of any such therapy in the record. He did not see a neurologist about his carpal tunnel syndrome until almost four years after the accident

I always read Perl for the proposition that issues regarding qualitative evaluation and “causation” following the accident were questions of fact for the jury.  I think the Second Department reads Perl the same way as they have not kicked a case on contemporaneous treatment issues since Perl.  Remember, the crux of this case is that causation is not established without contemporaneous treatment.  In the no-fault world, the same argument could hold since the burden on summary judgment for lack of causation is the same in the 5102(d) and first-party benefit sense.

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