| DeSouza v Hamilton |
| 2008 NY Slip Op 07713 [55 AD3d 352] |
| October 9, 2008 |
| Appellate Division, First Department |
| Casey DeSouza, Appellant, v Eugene M. Hamilton et al.,Respondents. |
—[*1] Fiedelman & McGaw, Jericho (Andrew Zajac of counsel), for Eugene M. Hamilton,respondent. Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Holly E. Peck of counsel), forDjeli Diallo, respondent.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered June 19,2007, which granted defendants' motion for summary judgment dismissing the complaint for lackof a serious injury as required by Insurance Law § 5102 (d), unanimously affirmed,without costs.
No issue of fact as to permanence or significance is raised by plaintiff's physician's March 27,2007 affirmation in opposition discussing and attaching contemporaneous reports of hisexaminations of plaintiff on February 1, 2005, three days after the accident, June 3, 2005, andMarch 2, 2007. Although the affirmation states that plaintiff ceased treatment on June 3, 2005,after four months of physical therapy, by which time plaintiff "had reached the maximum benefitof therapeutic treatment for her [disc] injuries," such that any further treatment would have beenmerely "palliative," the June 3, 2005 contemporaneous report recommended that plaintiffcontinue physical therapy three times a week. "[A] plaintiff who terminates therapeutic measuresfollowing the accident . . . must offer some reasonable explanation for having doneso" (Pommells v Perez, 4 NY3d 566, 574 [2005]). Here, the explanation offeredcontradicts the earlier recommendation to continue physical therapy, and cannot be acceptedunder the circumstances presented (see Gonzalez v A.V. Managing, Inc., 37 AD3d 175[2007]). In addition, there is no medical evidence substantiating plaintiff's claim that a priorinjury to her left shoulder had resolved by the time of the accident (see Brewster v FTMServo, Corp., 44 AD3d 351, 352 [2007]), and no objective medical evidence whatsoever of aserious injury to plaintiff's right knee. Plaintiff's 90/180 day claim lacks medical substantiation ofher claim that her [*2]injuries were such as to require herconfinement to home for some four months following the accident (see Nelson v Distant,308 AD2d 338, 340 [2003]). Concur—Andrias, J.P., Nardelli, McGuire, Moskowitz andRenwick, JJ.