Key Takeaway
Second Department follows First Department precedent, making gaps in medical treatment a viable defense against personal injury threshold claims again.
The landscape of personal injury litigation in New York continues to evolve, particularly regarding how courts handle gaps in medical treatment when determining whether a plaintiff meets the serious injury threshold under Insurance Law § 5102(d). For years, plaintiffs’ attorneys have grappled with defendants who argue that interruptions in treatment demonstrate that injuries weren’t truly serious or disabling.
The Second Department’s approach to treatment gaps has historically differed from the First Department’s more plaintiff-friendly stance. This divergence created strategic challenges for attorneys practicing in different appellate divisions, as the same set of facts might yield different outcomes depending on the court’s jurisdiction.
Recent developments suggest the Second Department is aligning more closely with First Department precedent, potentially making it more difficult for plaintiffs to succeed in personal injury cases involving soft tissue injuries where treatment gaps exist.
Jason Tenenbaum’s Analysis:
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.
Key Takeaway
This decision signals a concerning trend for plaintiffs’ attorneys handling soft tissue injury cases in the Second Department. The court’s renewed emphasis on treatment gaps as grounds for dismissal aligns with First Department precedent, making it increasingly challenging to pursue successful threshold motions in cases where clients have interrupted their medical care, regardless of the underlying reasons for such gaps.
Legal Update (February 2026): Since this 2018 analysis, New York appellate courts may have issued additional precedential decisions regarding treatment gaps and serious injury threshold determinations under Insurance Law § 5102(d). The evolving jurisprudence in both the First and Second Departments on this issue requires practitioners to verify current case law and any potential harmonization of standards across appellate divisions.
