JACKSON v. “John Doe 1,” the name “John Doe 1” being fictitious and intended to designate the person operating the automobile of said Just Bagels Manufacturing Inc., at the time and place herein alleged, Just Bagels Manufacturing Inc., Defendant. (2019)

Defendant satisfied his prima facie burden of showing that plaintiff did not sustain a serious injury to his cervical spine, lumbar spine or left wrist as a result of the 2013 motor vehicle accident.  Defendant's neurologist found that plaintiff had full range of motion and negative test results in his cervical and lumbar spine, and that any injuries had resolved (see Alverio v. Martinez, 160 A.D.3d 454, 74 N.Y.S.3d 525 [1st Dept. 2018];  Frias v. Son Tien Liu, 107 A.D.3d 589, 967 N.Y.S.2d 382 [1st Dept. 2013]).  Defendant's expert was not required to review plaintiff's medical records before forming his opinion (see Mena v. White City Car & Limo Inc., 117 A.D.3d 441, 985 N.Y.S.2d 234 [1st Dept. 2014]).  Defendant also relied on plaintiff's deposition testimony admitting that he returned to work full-time as a personal trainer within two months of the accident, received just three months of physical therapy and sought no further medical treatment following a November 2014 procedure to his lumbar spine.  This testimony both defeats plaintiff's 90/180–day claim and demonstrates that his injuries were not serious, but were minor in nature (see Castro v. DADS Natl. Enters., Inc., 165 A.D.3d 601, 602, 87 N.Y.S.3d 18 [1st Dept. 2018];  Frias v. Son Tien Liu, 107 A.D.3d at 590, 967 N.Y.S.2d 382).  Defendant further pointed out that plaintiff was required to explain his extended gap in treatment following the November 2014 procedure (see Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005]).

In opposition, plaintiff failed to raise a triable issue of fact.  He provided no medical evidence of serious injury to his cervical spine or wrist, but only the report of his treating physician, who first examined plaintiff's lumbar spine six months after the accident.  Neither plaintiff nor the physician explained plaintiff's two separate two-year gaps in treatment (see Pommells, at 576, 797 N.Y.S.2d 380, 830 N.E.2d 278;  Alverio v. Martinez, 160 A.D.3d at 455, 74 N.Y.S.3d 525).  Furthermore, in the absence of any admissible evidence of contemporaneous, post-accident treatment or evaluation of his alleged injuries, plaintiff failed to raise an issue of fact as to whether his conditions were causally related to the accident (see Santos v. Traylor–Pagan, 152 A.D.3d 406, 58 N.Y.S.3d 350 [1st Dept. 2017];  Rosa v. Mejia, 95 A.D.3d 402, 404, 943 N.Y.S.2d 470 [1st Dept. 2012]).