Court Holds Issue of Fact Exists As to "Serious Injury" Even Though Plaintiff Has a Three-Year Gap in Treatment

In Pommells v. Perez (one of three cases decided in the opinion), the New York Court of Appeals discussed factors in light of objective medical proof that can warrant summary dismissal of a complaint concerning whether a plaintiff has sustained a serious injury under Insurance Law sec. 5102(d).  One of the factors is where the plaintiff has an unexplained gap in treatment.

In Davis v. Bowman, Justice Polizzi of Supreme Court, Queens County, explicitly shares the Court of Appeals' frustration concerning the inundation of "serious injury" cases in the court system.  Despite a three-year gap in treatment between the conclusion of treatment and a medical examination conducted to oppose the summary judgment motion, Justice Polizzi denied the defendant's summary judgment motion.  His short opinion is a biting commentary on section 5102(d) and its impact of the court system.

Comments

[Nelson Timken]

There is an article I wrote on this issue in the June 23, 2005, NYLJ, at page 4, column 3 entitled "Threshold motions: Has the Fitst Department Raised the Bar?"