Baez v. Rahamatali

24 A.D.3d 256, 808 N.Y.S.2d 171

Opinions

Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J), entered March 8, 2004, which granted defendants’ motions for summary judgment dismissing the complaint, affirmed, without costs.

Plaintiffs unexplained 20-month gap in treatment is fatal to her claim of serious injury (see Pommells v Perez, 4 NY3d 566, 574 [2005]; Colon v Kempner, 20 AD3d 372, 374 [2005]). The dissent’s assumption that plaintiff stopped treatment because there was no further benefit to continuing physical therapy is not supported by any evidence, medical or otherwise, but rather, is based on mere speculation. Dr. Graziosa never stated that plaintiff’s MRI films of November 2000 and June 2001 indicated she needed surgery, not physical therapy, at that time; he only affirmed, “[w]e, at this point in time [November 2003], clearly indicate an arthroscopy of the knee.” Moreover, Dr. Graziosa did not provide an explanation demonstrating that plaintiffs initial, accident-related injury was the cause of her subsequent two injuries, in February and May 2001, and thus did not establish that the prescribed surgery was occasioned by the automobile accident injury. Concur—Buckley, P.J., Marlow and Williams, JJ.