Ramkumar v Grand Style Transp. Enters. Inc.
Decided on April 10, 2012
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Saxe, J.P., Friedman, Renwick, DeGrasse, Freedman, JJ.
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 ).
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 ), "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).
Plaintiff's accident occurred on April 8, 2007 and he underwent arthroscopic surgery on his right knee on June 29, 2007. As of July 5, 2007, plaintiff's 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 ; Jacobs v Rolon, 76 AD3d 905 ). 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. All concur except Saxe, J.P. and Freedman, J. who dissent in a memorandum by Saxe, J.P. as follows: SAXE, J.P. (dissenting)
Although the motion court dismissed plaintiff's serious injury claims on the ground that his physician's measurements of plaintiff's range-of-motion limitations were not made contemporaneously with the accident, the majority affirms the dismissal based on different reasoning, namely, what it deems to be an insufficiently-explained cessation of treatment. In view of plaintiff's assertion that he ceased ongoing therapy when his no-fault benefits for that service ceased, I believe it is error to affirm the dismissal of plaintiff's claims on that ground. I strenuously disagree with the majority's assertion that in order to be entitled to proceed with his serious injury claims, plaintiff had an affirmative obligation to explain why he could not afford to pay out of pocket for his continued therapy after his no-fault benefits stopped covering his therapy.
On April 8, 2007, plaintiff Nandkumar Ramkumar, then 23 years old, was a passenger in an automobile owned by defendant Bisnath Bissessar and operated by co-defendant Danish Bissessar, when their car collided with another automobile owned by defendant Grand Style Transportation Enterprises Inc. and operated by defendant Ibrahim S. Tandia. Plaintiff was taken by ambulance to a nearby hospital emergency room where he was diagnosed with soft tissue injury, prescribed ibuprofen and released.
He sought treatment the next day, April 9, 2007, at Liberty Advanced Medical, P.C., complaining of severe neck pain, lower back pain and pain in his right knee. Dr. William Mejia diagnosed him with cervical and lumbar sprain and strain, and post-traumatic injury to the right knee, and prescribed a course of physical therapy, with MRIs to be performed if the symptoms persisted. On May 25, 2007, an MRI of plaintiff's lumbar spine was performed, and a left foraminal herniation was found at L3-4, and a central disc herniation was found at L4-5. On June 20, 2007, an MRI was performed on his right knee, revealing a tear of the lateral meniscus, involving both the anterior and posterior horns. Arthroscopic surgery was performed on plaintiff's knee by Dr. Mehran Manouel on June 29, 2007. Plaintiff alleges that he was confined to bed for two days in April 2007 and for seven days in June and July 2007 "and intermittently thereafter."
Plaintiff commenced this action on or about July 10, 2007, alleging that the accident resulted in tears to his right meniscus, and injuries to his shoulders, cervical spine and lumbar spine, including herniated discs at L3-4 and L4-5.
Defendants moved for summary judgment, contending that plaintiff cannot establish that he suffered a serious injury as defined by Insurance Law § 5102(d). They relied on the reports of three experts: two orthopedists and a radiologist.
Although their experts' findings satisfied defendants' burden of making a prima facie showing of entitlement to summary judgment (see Feliz v Fragosa, 85 AD3d 417, 418 ), the evidence offered in response by plaintiff created an issue of fact as to whether plaintiff's injuries constituted serious injuries that were causally ...