Ramkumar v. Grand Style Transportation Enterprises Inc.

94 A.D.3d 484, 941 N.Y.S.2d 610

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 10, 2012
• Status: Published

Opinions

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about July 1, 2010, which, to the extent appealed from as limited by the briefs, granted defendants’ cross motions for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), affirmed, without costs.

Defendants made a prima facie showing of entitlement to judgment as a matter of law. The differences in the defense experts’ range-of-motion findings are minor and both doctors concluded that plaintiff’s range of motion is normal (see Feliz v Fragosa, 85 AD3d 417, 418 [2011]).

In opposing defendants’ motions, plaintiff failed to offer a reasonable explanation for a significant gap in his medical treatment that was raised by the Bissessar defendants when they cross-moved for summary judgment. As the Court of Appeals held in Pommells v Perez (4 NY3d 566 [2005]), “a plaintiff who terminates therapeutic measures following the accident, while claiming ‘serious injury,’ must offer some reasonable explanation for having done so” (id. at 574).

Plaintiffs accident occurred on April 8, 2007 and he underwent arthroscopic surgery on his right knee on June 29, 2007. As of July 5, 2007, plaintiffs orthopedic surgeon recommended physical therapy. When asked when he last received physical therapy, plaintiff testified that he was “cut off” five months before his July 2008 deposition. Therefore, the record gives no indication that plaintiff received any medical treatment during the 24-month period before he submitted answering papers to defendants’ motions. We assume, as the dissent does, that there are limits to the amount of no-fault coverage for medical services such as physical therapy. The inquiry, however, does not end there. A bare assertion that insurance coverage for medically required treatment was exhausted is unavailing without any documentary evidence of such or, at least, an indication as to whether an injured claimant can afford to pay for the treatment out of his or her own funds (see e.g. Gomez v Ford Motor Credit Co., 10 Misc 3d 900, 903 [Sup Ct, Bronx County 2005]; see also Salman v Rosario, 87 AD3d 482 [2011]; Jacobs v Rolon, 76 AD3d 905 [2010]). Plaintiff, who was employed and living with his parents, gave no such indication. Also, the dissent’s theory that “[i]njuries are not always treatable by physical therapy” is speculative and finds no support in the record. Concur — Friedman, Renwick and DeGrasse, JJ.