ALSTON v. ELLIOTT (2018)

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about December 15, 2016, which granted defendant's motion for summary judgment dismissing the complaint based on plaintiffs' inability to establish a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendant met his prima facie burden by submitting the report of a physician who opined that plaintiff Alston's cervical spine sprain and plaintiff Brown's lumbar spine sprain had fully resolved (see Cruz v. Martinez, 106 A.D.3d 482, 483, 965 N.Y.S.2d 94 [1st Dept. 2013] ).  The physician opined that, while Alston exhibited limitations in range of motion, the limitations were subjective and unsupported by any objective evidence of injury (see Swift v. New York Tr. Auth., 115 A.D.3d 507, 981 N.Y.S.2d 706 [1st Dept. 2014] ).  Moreover, defendant argued that both plaintiffs' claims of serious injury were belied by their having ceased all treatment about seven years earlier, within three months of the accident, which they were required to explain (see Pommells v. Perez, 4 N.Y.3d 566, 572, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ).

In opposition, plaintiffs submitted affidavits that contradicted their sworn deposition testimony concerning the reasons for their cessation of medical treatment.  Plaintiff Alston testified that she terminated treatment after about three months because therapy wasn't “helping” her.  Plaintiff Brown testified that he terminated treatment because it made him feel worse afterwards.  However, in opposition to defendant's motion, in near identical affidavits, both plaintiffs asserted that they ceased treatment because no-fault benefits were discontinued, and they could no longer afford to pay “out of pocket.”  A party's affidavit that contradicts his prior sworn testimony “creates only a feigned issue of fact, and is insufficient to defeat a properly supported motion for summary judgment” (Harty v. Lenci, 294 A.D.2d 296, 298, 743 N.Y.S.2d 97 [1st Dept. 2002];   see Cruz v. Martinez, 106 A.D.3d at 483, 965 N.Y.S.2d 94).

The unexplained seven-year period gap in treatment also renders the opinion of plaintiff Alston's medical expert speculative as to the permanency, significance, and causation of the claimed injuries (see Cekic v. Zapata, 69 A.D.3d 464, 895 N.Y.S.2d 334 [1st Dept. 2010] ).  Plaintiff Brown did not offer any recent evidence of limitations, and therefore could not demonstrate that he sustained an injury involving “permanent consequential” limitation in use of a body part (see Cabrera v. Apple Provisions, Inc., 151 A.D.3d 594, 595, 57 N.Y.S.3d 471 [1st Dept. 2017] ).  Moreover, the evidence that both plaintiffs returned to work shortly after the accident and ceased treatment within three months, demonstrates that their injuries were minor in nature, involving neither “significant” nor “permanent consequential” limitations in use of their spines (see Frias v. Son Tien Liu, 107 A.D.3d 589, 967 N.Y.S.2d 382 [1st Dept. 2013];  Haniff v. Khan, 101 A.D.3d 643, 644, 958 N.Y.S.2d 89 [1st Dept. 2012] ).

We have addressed plaintiffs' other contentions and find them to be without merit.