| Merrick v Lopez-Garcia |
| 2012 NY Slip Op 07575 [100 AD3d 456] |
| November 13, 2012 |
| Appellate Division, First Department |
| Eustace Merrick et al., Appellants, v Jose Lopez-Garcia etal., Respondents. |
—[*1] McCabe, Collins, McGeough & Fowler, LLP, Carle Place (Patrick M. Murphy of counsel),for respondents.
Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered March 5, 2012, whichgranted defendants' motion for summary judgment dismissing the complaint alleging seriousinjury under Insurance Law § 5102 (d), unanimously affirmed, without costs.
Defendants made out a prima facie showing that plaintiff did not suffer serious injury of apermanent nature. In opposition, plaintiff raised an issue of fact as to significant limitations in hiscervical, thoracic and lumbar spine by submitting MRI reports, an EMG/NCV report, and Dr.Barry Sloan's affirmed report of recent findings of limitations (see Toure v Avis Rent A CarSys., 98 NY2d 345, 350 [2002]). However, he failed to address the gap in treatment betweenApril 2008, when he was last treated, and December 2011, when Dr. Sloan evaluated him forpurposes of opposing defendants' motion. This "gap" is essentially a cessation of treatment (see Pommells v Perez, 4 NY3d566, 574 [2005]). Plaintiff claimed that he stopped treatment because he could not afford itafter his no-fault benefits ended, but he also testified that he had private health insurance. Henever explained why he was unable to continue with treatment through his insurance, andtestified only that the particular physical therapist he had been treating with did not accept hisplan (see Ramkumar v Grand StyleTransp. Enters. Inc., 94 AD3d 484 [1st Dept 2012]). Dr. Sloan was not plaintiff'streating physician, and his evaluation of plaintiff took place more than 3� years after plaintiffwas last treated. Because plaintiff did not adequately explain the gap in treatment, Dr. Sloan'sopinion as to permanency, significance, and causation is speculative and seemingly tailored tomeet the statutory definition of serious injury (see Arjona v Calcano, 7 AD3d 279, 280 [1st Dept 2004]).
Defendants established prima facie that plaintiff did not sustain a 90/180-day-category claim,by submitting plaintiff's bill of particulars alleging that he was not confined to bed or home at alland his deposition testimony that he was confined to home for only two months (see Mitrotti v Elia, 91 AD3d 449,450 [1st Dept 2012]). Although he submitted a note from his employer stating that he did notwork for four months after the accident, plaintiff testified that the company was operating inFlorida during the requisite period and went bankrupt five months after his accident. His treatingphysician's report, dated about three months after the accident, noting that plaintiff would be ableto go to Florida for work upon further improvement is not [*2]determinative of a 90/180-day injury, especially given that plaintifftestified only that he was unable to perform house chores or lift "things" after the accident, whichis insufficient to show that he was unable to perform "substantially all" of his "usual andcustomary daily activities" during the requisite period (see Uddin v Cooper, 32 AD3d 270, 271 [1st Dept 2006], lvdenied 8 NY3d 808 [2007]). Concur—Gonzalez, P.J., Saxe, Catterson, Acosta andGische, JJ.