Gonzalez v. Beale

37 A.D.3d 278, 830 N.Y.S.2d 95

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 2007
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Milton A. Tingling, J.), entered December 28, 2005, dismissing the complaint pursuant to an order, same court and Justice, entered November 7, 2005, which, inter alia, granted defendants’ cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff’s evidence in response to defendants’ prima facie showing that the subject February 2001 accident did not cause a serious injury within the meaning of Insurance Law § 5102 (d) consisted mainly of his chiropractor’s June 2005 affidavit and accompanying report of a May 2005 examination, both prepared after defendants had cross-moved for summary judgment. The chiropractor had last seen plaintiff approximately seven months after the accident, and was the only health care professional to see plaintiff after he had completed a three-month course of physical therapy, chiropractic manipulation and acupuncture. While the chiropractor, who opines that plaintiff suffers from permanent and partially disabling limitations to his lumbar and cervical spine attributable to multiple disc herniations with stenosis, as well numbness in his hand attributable to carpal tunnel syndrome, states that he had released plaintiff from active chiropractic care because he believed his conditions were permanent and that any further treatment would be palliative only, and that plaintiff has since been suffering and self-treating with various medications, mostly Motrin, he does not satisfactorily explain the four-year gap in treatment for purportedly painful conditions (see Pommells v Perez, 4 NY3d 566, 574 [2005]; Navedo v Jaime, 32 AD3d 788, 790 [2006]). Concur—Mazzarelli, J.E, Andrias, Friedman, Sweeny and Kavanagh, JJ.