UNEXPLAINED "GAP" IN TREATMENT KILLS CAR ACCIDENT VICTIM'S CASE

Court: Supreme Court, Appellate Division, Second Department

Case: Bonilla v. LoCicero

Date: Sept. 20, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens Bronx; Queens accident attorney)

Comment: Another No-Fault "serious injury" threshold injury summary judgment motion arising out of an automobile or car accident case, where the accident victim/plaintiff shouldn’t have lost.

The defense routinely makes these motions, and they’re usually beatable – if the accident victim’s lawyers understand the law.

Generally, No-Fault insurance pays for accident-related medical care. Also, generally, that benefit is cancelled by the No-Fault insurance carrier fairly quickly; maybe after two or three months.

The problem is that most plaintiffs stop treating, even though they may be in pain. The Courts take the position that "no treatment=no injury," and routinely dismiss these car accident cases.

To prevail on this point, the plaintiff usually just has to say in his or her affidavit opposing the defense motion that, while they’re still in pain, they stopped treating because: (1) their No-Fault insurance benefits were cut off, (2) they have no other insurance to pay for treatment, and, (3) they can’t afford to pay for medical care themselves. To add icing to this cake, a doctor could also affirm that the accident victim was not being "cured" by treatment, which only offered temporary relief from pain and, anyway, the doctor gave the accident victim exercises to do at home which would help nearly as much. The accident victim should confirm this (if it’s true, of course).

And that’s one way it’s done, Dear Readers.

RELATED POSTS:

NO SUMMARY JUDGMENT TO DEFENSE ON NO-FAULT "SERIOUS INJURY" THRESHOLD MOTION; CAR ACCIDENT VICTIM HAD KNEE SURGERY 4 MONTHS POST-ACCIDENT (Posted by Brooklyn accident attorney Gary E. Rosenberg on Oct 7, 2011 )

DEFENSE LOSES NO-FAULT SERIOUS INJURY THRESHOLD SUMMARY JUDGMENT MOTION WHERE ITS EXAMINING DOCTOR DIDN'T MEASURE ACCIDENT VICTIM'S (Posted by Brooklyn accident attorney Gary Rosenberg on Jul 30, 2010)



In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated December 2, 2010, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.

The defendants met their prima facie burden of establishing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). The plaintiff alleged that, as a result of the subject accident, she sustained certain injuries to the cervical and thoracolumbar regions of her spine, and her left hip. However, the defendants submitted competent medical evidence establishing, prima facie, that none of those alleged injuries constituted a serious injury within the meaning of Insurance Law § 5102(d) (see Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180; Rodriguez v. Huerfano, 46 A.D.3d 794, 795, 849 N.Y.S.2d 275). Furthermore, while the plaintiff also alleged that she sustained a serious injury under the 90/180–day category of Insurance Law § 5102(d), the defendants submitted evidence establishing, prima facie, that during the 180–day period immediately following the subject accident, the plaintiff did not have an injury or impairment which, for more than 90 days, prevented her from performing substantially all of the acts that constituted her usual and customary daily activities (cf. Kin Chong Ku v. Baldwin–Bell, 61 A.D.3d 938, 939, 880 N.Y.S.2d 76).

In opposition, the plaintiff failed to provide a reasonable explanation for a cessation of her medical treatment (see Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278) and failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint.

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