5102(d) and a dissent discussing "no-fault"

Ramkumar v Grand Style Transp. Enters. Inc., 2012 NY Slip Op 02597 (1st Dept. 2012)

Plaintiff in a 5102(d) action must prove that (s)he was cut off from no-fault and that (s)he had an inability to pay the ensuing medical bills…

“Plaintiff’s accident occurred on April 8, 2007 and he underwent arthroscopic surgery on his right knee on June 29, 2007. As of July 5, 2007, plaintiff’s orthopedic surgeon recommended physical therapy. When asked when he last received physical therapy, plaintiff testified that he was “cut off” five months before his July 2008 deposition. Therefore, the record gives no indication that plaintiff received any medical treatment during the 24-month period before he submitted answering papers to defendants’ motions. We assume, as the dissent does, that there are limits to the amount of no-fault coverage for medical services such as physical therapy. The inquiry, however, does not end there. A bare assertion that insurance coverage for medically required treatment was exhausted is unavailing without any documentary evidence of such or, at least, an indication as to whether an injured claimant can afford to pay for the treatment out of his or her own funds (see e.g. Gomez v Ford Motor Credit Co., 10 Misc 3d 900, 903 ; see also Salman v Rosario, 87 AD3d 482 ; Jacobs v Rolon, 76 AD3d 905 ). Plaintiff, who was employed and living with his parents, gave no such indication. Also, the dissent’s theory that “njuries are not always treatable by physical therapy” is speculative and finds no support in the record.”

And now the dissent

“In support of imposing such an obligation on plaintiff, the majority cites Salman v Rosario (87 AD3d 482 ) and Jacobs v Rolon, 76 AD3d 905 ), in which this Court accepted the explanations provided by the plaintiffs that once their no-fault benefits stopped, they could not afford to pay for continued medical care. There is nothing incorrect about these rulings, but they were never intended to establish the minimum acceptable explanation as contemplated in Pommells v Perez.

Also offered in support for the majority’s ruling is a lower court decision in Gomez v Ford Motor Credit Co. (10 Misc 3d 900, 903 ). The court in Gomez analyzed the requirements set out in Pommells v Perez and concluded that a plaintiff’s burden of explaining a gap or cessation in treatment was not satisfied by the explanation that no-fault benefits had been discontinued. The court there held that the plaintiff was required to submit substantiation for the assertion that no-fault benefits were discontinued, adding that “t the very least, counsel for plaintiff should have provided a letter from the insurance carrier as to when and why the carrier discontinued coverage” (id.). It termed an unsubstantiated claim “conclusory and nonprobative” (id.). It then went even further, blaming the plaintiff for failing to “provide[] an [*6]explanation as to why he could not have continued treatment paid out of his own pocket” (id.).

This proposed requirement in Gomez of “substantiation” of the plaintiff’s explanation for the cessation of treatment would engraft onto § 5102(d) an unfair and unreasonable standard of proof. Anyone who has ever dealt with no-fault carriers would understand the likely futility of obtaining the suggested letter from them. The onerous nature of the Gomez requirements is highlighted by the companion requirement suggested there — one that seems to be adopted by the majority here — requiring a plaintiff to “explain” why he could not have paid out of pocket to continue his treatment when insurance benefits terminated. If we were to adopt such a requirement, a plaintiff with a substantial, lasting injury that was not healed during the course of the covered therapeutic treatment, would not be entitled to proceed with a lawsuit unless and until the plaintiff either dug deep into savings to pay for continued therapeutic treatment, or explained why his or her financial circumstances did not permit it. Indeed, consistent with Gomez‘s proposed “substantiation” requirement, proof of the plaintiff’s financial condition would be necessary.

The fact of the matter is that for most people, when insurance coverage ends, treatment ends. Very few people have the means to pay the substantial fees that the uninsured are charged for medical care. People who are employed have regular expenses on which they must spend their earnings; even people with savings most often have plans for the use of those funds. The right to sue for a serious injury cannot be predicated on the plaintiff paying those substantial fees out of pocket, assuming that the funds exist.

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Legal Update (February 2026): Since this 2012 decision, New York’s no-fault insurance regulations under Insurance Law Section 5102(d) may have been subject to regulatory amendments, fee schedule updates, and procedural modifications. The specific requirements for proving exhaustion of no-fault benefits and financial inability to pay for continued treatment may have evolved through subsequent case law and regulatory changes. Practitioners should verify current provisions of Section 5102(d) and related regulations when handling similar claims.