Why Trust This Analysis
This article is part of our ongoing 5102(d) issues coverage, with 89 published articles analyzing 5102(d) issues issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
Gap in medical treatment is often a crucial factor in New York no-fault insurance litigation, particularly when defendants attempt to challenge the causation between an accident and claimed injuries. However, the legal landscape around treatment gaps can be nuanced, with courts making important distinctions about when and how these gaps affect a plaintiff’s case.
The Second Department’s decision in Lambropoulos v Gomez provides valuable clarification on this issue, demonstrating how the burden-shifting framework in serious injury threshold cases can limit when treatment gaps become relevant. This ruling is particularly significant for understanding how personal injury claims proceed when defendants fail to meet their initial burden regarding causation.
Understanding these procedural requirements is essential, as courts have consistently held that the failure to properly establish a prima facie case can have serious consequences for defendants, sometimes resulting in cases where they effectively undermine their own arguments.
Jason Tenenbaum’s Analysis:
Lambropoulos v Gomez, 2018 NY Slip Op 08118 (2d Dept. 2018)
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In opposition, however, the plaintiff submitted evidence sufficient to raise a triable issue of fact as to whether he sustained serious injuries to the cervical and lumbar regions of his spine under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) (see Perl v Meher, 18 NY3d 208, 218-219). As the defendants failed to establish, prima facie, a lack of causation, the burden did not shift to the plaintiff to raise a triable issue of fact regarding causation or to explain any gap in treatment (see Pommells v Perez, 4 NY3d 566, 572; Rivera v Ramos, 132 AD3d 655, 656).
Nice to a gap in treatment is limited to “causation” issues. This is an interesting wrinkle on gap in treatment law.
Key Takeaway
This decision establishes that gaps in medical treatment only become relevant when defendants successfully establish a prima facie case regarding lack of causation. When defendants fail to meet this initial burden, plaintiffs are not required to explain treatment gaps, highlighting the importance of the burden-shifting framework in serious injury threshold cases.
Related Articles
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- Critical mistakes that can destroy your personal injury case under 5102(d)
- Understanding the distinction between serious injury threshold and medical necessity
- Personal Injury
Legal Update (February 2026): Since this 2018 post, Insurance Law § 5102 and related no-fault provisions may have been subject to regulatory amendments or judicial clarifications that could affect gap in treatment analysis and serious injury threshold determinations. Practitioners should verify current statutory language, updated fee schedules, and recent appellate decisions regarding burden-shifting frameworks in serious injury cases.
Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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