Second Department once again now recognizes a gap in treatment as a basis to non-suit PlaintiffsJuly 25, 2018
Chiu Yuan Hu v Frenzel, 2018 NY Slip Op 05445 (1st Dept. 2018)
“In opposition to the defendant’s prima facie showing, the plaintiff raised triable issues of fact as to whether she sustained serious injuries to the cervical and thoracolumbar regions of her spine (see Perl v Meher, 18 NY3d 208, 215-218). Further, contrary to the determination of the Supreme Court, we find that the plaintiff adequately explained the gap in her treatment by submitting an affirmed medical report of her treating physician (see Pommells v Perez, 4 NY3d 566, 577; Jean-Baptiste v Tobias, 88 AD3d 962; Park v He Jung Lee, 84 AD3d 904, 905).”
It got harder as a Plaintiff to make a living on soft tissue cases today in the Second Department. I was waiting for the Second Department to follow the First Department. It has somewhat happened. Gap in treatment is back.