Jackson v Doe, 2019 NY Slip Op 04765 (1st Dept. 2019)
“Defendant satisfied his prima facie burden of showing that plaintiff did not sustain a serious injury to his cervical spine, lumbar spine or left wrist as a result of the 2013 motor vehicle accident. Defendant’s neurologist found that plaintiff had full range of motion and negative test results in his cervical and lumbar spine, and that any injuries had resolved (see Alverio v Martinez, 160 AD3d 454 [1st Dept 2018]; Frias v Son Tien Liu, 107 AD3d 589 [1st Dept 2013]). Defendant’s expert was not required to review plaintiff’s medical records before forming his opinion (see Mena v White City Car & Limo Inc., 117 AD3d 441[1st Dept 2014]). Defendant also relied on plaintiff’s deposition testimony admitting that he returned to work full-time as a personal trainer within two months of the accident, received just three months of physical therapy and sought no further medical treatment following a November 2014 procedure to his lumbar spine. This testimony both defeats plaintiff’s 90/180-day claim and demonstrates that his injuries were not serious, but were minor in nature (see Castro v DADS Natl. Enters., Inc., 165 AD3d 601, 602 [1st Dept 2018]; Frias v Son Tien Liu, 107 AD3d at 590). Defendant further pointed out that plaintiff was required to explain his extended gap in treatment following the November 2014 procedure (see Pommells v Perez, 4 NY3d 566, 574 ).
In opposition, plaintiff failed to raise a triable issue of fact. He provided no medical evidence of serious injury to his cervical spine or wrist, but only the report of his treating physician, who first examined plaintiff’s lumbar spine six months after the accident. Neither plaintiff nor the physician explained plaintiff’s two separate two-year gaps in treatment (see [*2]Pommells at 576; Alverio v Martinez, 160 AD3d at 455). Furthermore, in the absence of any admissible evidence of contemporaneous, post-accident treatment or evaluation of his alleged injuries, plaintiff failed to raise an issue of fact as to whether his conditions were causally related to the accident (see Santos v Traylor-Pagan, 152 AD3d 406 [1st Dept 2017]; Rosa v Mejia, 95 AD3d 402, 404 [1st Dept 2012]).”
So what happened here? There’s a finding of resolution of injury. The court required that Plaintiff explain gaps in treatment. Moreover, the failure to present evidence contemporaneous to the accident raised an issue of causation.
Now, for those following 5102(d) cases, the Second Department has held that absent prima faice proof of lack of causation, gap in treatment is irrelevant. In addition and in citing Perl, the Second Department does not require treatment contemporaneous with the loss.
Critically, I think it is time for the Second Department to weigh in. This may not be the right case because the Plaintiff’s own evidence refutes a serious injury. But I think a surgery case where there is a gap in treatment or 3 or or more months elapsed prior to treatment occurring would be a good case to take up.