Law Office of Judah Z. Cohen, PLLC, Woodmere (Judah Z. Cohen of counsel), for appellant.
Burke, Gordon & Conway, White Plains (Ashley E. Sproat of counsel), for Bisnath Bissessar and another, respondents.
Mauro Lilling Naparty LLP, Woodbury (Matthew W. Naparty and Timothy J. O'Shaughnessy of counsel), for Grand Style Transportation Enterprises Inc. and another, respondents.
Michael Jaffe, New York City, for New York State Trial Lawyers Association, amicus curiae.
McGaw, Alventosa & Zajac, Jericho (Andrew Zajac, Dawn C. DeSimone, Seamus G. Flaherty and Jonathan T. Uejio of counsel), and James M. Begley, New York City, for Defense Association of New York, Inc., amicus curiae.
Marc D. Craw, Albany, for New York Insurance Association, Inc., amicus curiae.
The order of the Appellate Division should be reversed, with costs, and the complaint reinstated.
[976 N.Y.S.2d 2] [998 N.E.2d 802] The record raises a triable
issue of fact as to whether plaintiff has offered " some reasonable
explanation" for the cessation of physical therapy treatment for his injury
(Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278  ). Plaintiff was asked at his deposition when he was last treated, and he replied that " they cut me off like five months." The Appellate Division held that 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" (94 A.D.3d 484, 485, 941 N.Y.S.2d 610  ).
We stated in Pommells that a plaintiff claiming " serious injury" within the meaning of the No-Fault Law " must offer some reasonable explanation" for terminating treatment (4 N.Y.3d at 574, 797 N.Y.S.2d 380, 830 N.E.2d 278). We did not require any particular proof regarding that explanation, although we recognized that there is " abuse of the No-Fault Law in failing to separate ‘ serious injury’ cases, which may proceed to court, from the mountains of other auto accident claims, which may not" ( Pommells, 4 N.Y.3d at 571, 797 N.Y.S.2d 380, 830 N.E.2d 278; see Perl v. Meher, 18 N.Y.3d 208, 214, 936 N.Y.S.2d 655, 960 N.E.2d 424  ).
The Appellate Division's requirement that plaintiff either offer documentary evidence to support his sworn statement that his no-fault benefits were cut off, or indicate that he could not afford to pay for his own treatment, is an unwarranted expansion of Pommells. Plaintiff testified at his deposition that " they" (which a reasonable juror could take to mean his no-fault insurer) cut him off, and that he did not have medical insurance at the time of the accident. While it would have been preferable for plaintiff to submit an affidavit in opposition to summary judgment explaining why the no-fault insurer terminated his
benefits and that he did not have medical insurance to pay for further treatment, plaintiff has come forward with the bare minimum required to raise an issue regarding " some reasonable explanation" for the cessation of physical therapy. Additionally, the " qualitative assessment of ... plaintiff's condition" (Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350-351, 746 N.Y.S.2d 865, 774 N.E.2d 1197  ) rendered by the physician who performed arthroscopic surgery on plaintiff's knee was that plaintiff's meniscal tear injury was causally related to the car accident, and that the meniscus has ...