Alston v Elliott, 2018 NY Slip Op 02019 (1st Dept. 2018)
The feigned issue of fact
(1) “In opposition, plaintiffs submitted affidavits that contradicted their sworn deposition testimony concerning the reasons for their cessation of medical treatment. Plaintiff Alston testified that she terminated treatment after about three months because therapy wasn’t “helping” her. Plaintiff Brown testified that he terminated treatment because it made him feel worse afterwards. However, in opposition to defendant’s motion, in near identical affidavits, both plaintiffs asserted that they ceased treatment because no-fault benefits were discontinued, and they could no longer afford to pay “out of pocket.” A party’s affidavit that contradicts his prior sworn testimony “creates only a feigned issue of fact, and is insufficient to defeat a properly supported motion for summary judgment”
Went back to work and did not go for treatment for 7 years.
(2)”Moreover, the evidence that both plaintiffs returned to work shortly after the accident and ceased treatment within three months, demonstrates that their injuries were minor in nature, involving neither “significant” nor “permanent consequential” limitations in use of their spines ”
‘…Moreover, defendant argued that both plaintiffs’ claims of serious injury were belied by their having ceased all treatment about seven years earlier, within three months of the accident, which they were required to explain”
