GONZALEZ v. MCCARVER LLC (2022)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the cross motion and reinstating the complaint against defendants-respondents, and as modified the order is affirmed without costs.

Memorandum: Plaintiffs commenced this action seeking to recover damages for injuries allegedly sustained by Alexis Gonzalez (plaintiff) when a vehicle he was driving was rear-ended by a vehicle driven by defendant Richard L. McCarver. Plaintiffs appeal from an order that, inter alia, granted the cross motion of defendants-respondents (defendants) for summary judgment dismissing the complaint against them on the ground that plaintiff did not suffer a serious injury under Insurance Law § 5102 (d) as a result of the accident due to an unexplained gap in plaintiff's treatment.

We agree with plaintiffs that Supreme Court erred in granting the cross motion based on its conclusion that there was an unexplained 14-month gap in plaintiff's treatment that was fatal to plaintiffs’ causes of action (see generally Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005]). Summary judgment may be appropriate, “[e]ven where there is objective medical proof [of a serious injury], when additional contributory factors interrupt the chain of causation between the accident and claimed injury—such as a gap in treatment, an intervening medical problem or a preexisting condition” (McCarthy v. Bellamy, 39 A.D.3d 1166, 1166, 834 N.Y.S.2d 800 [4th Dept. 2007] [internal quotation marks omitted]; see Hollenbeck v. Barry, 199 A.D.3d 1329, 1329-1330, 154 N.Y.S.3d 529 [4th Dept. 2021]). Here, the court granted the cross motion based solely on the purported gap in plaintiff's treatment, not because it found that plaintiff's injuries did not constitute a serious injury under Insurance Law § 5102 (d). Thus, the primary issue on this appeal is not whether there was a serious injury, but rather whether the purported injury was caused as “a result of the accident” (PJI 2:88E, 2:88F; see generally Insurance Law § 5102 [d]) and, with respect to that issue, defendants bore the burden on their cross motion of establishing as a matter of law that the “chain of causation” was interrupted by the alleged gap in treatment (Pommells, 4 N.Y.3d at 572, 797 N.Y.S.2d 380, 830 N.E.2d 278).

Contrary to defendants’ position on their cross motion and the court's decision, we conclude that “the record fails to establish [as a matter of law] that plaintiff in fact ceased all therapeutic treatment” during the purported 14-month gap alleged by defendants (Cook v. Peterson, 137 A.D.3d 1594, 1597, 28 N.Y.S.3d 501 [4th Dept. 2016] [internal quotation marks omitted]; see Hollenbeck, 199 A.D.3d at 1330, 154 N.Y.S.3d 529; Ortiz v. Boamah, 169 A.D.3d 486, 489, 93 N.Y.S.3d 311 [1st Dept. 2019]). Indeed, the record reflects that plaintiff did not cease all treatment during the purported 14-month gap, and instead self-treated during that time with pain medications and exercises, pursuant to his physician's instructions (see Cook, 137 A.D.3d at 1597, 28 N.Y.S.3d 501). The court also erred to the extent that it concluded that plaintiff's explanation for the purported gap in treatment was “disingenuous” because that conclusion is tantamount to a credibility determination, which is not generally permitted on a motion for summary judgment (see Perl v. Meher, 18 N.Y.3d 208, 219, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011]; Cook, 137 A.D.3d at 1597, 28 N.Y.S.3d 501). In any event, we note that the issue of causation is “[t]ypically ․ one to be [resolved] by the factfinder” (Hain v. Jamison, 28 N.Y.3d 524, 529, 46 N.Y.S.3d 502, 68 N.E.3d 1233 [2016]).

Further, we reject defendants’ contention, advanced as an alternative ground for affirmance on plaintiffs’ appeal (see Parochial Bus Sys., Inc. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 545-546, 470 N.Y.S.2d 564, 458 N.E.2d 1241 [1983]), that the court properly granted the cross motion because plaintiff did not suffer a serious injury under Insurance Law § 5102 (d). Even assuming, arguendo, that defendants met their initial burden on the cross motion in that respect, we conclude that plaintiffs raised triable issues of fact through the affidavit of plaintiff's treating physician whether plaintiff sustained a serious injury under the significant limitation of use and permanent consequential limitation of use categories (see Kracker v. O'Connor, 158 A.D.3d 1324, 1325, 70 N.Y.S.3d 730 [4th Dept. 2018]; Crewe v. Pisanova, 124 A.D.3d 1264, 1265, 3 N.Y.S.3d 798 [4th Dept. 2015]; Burke v. Moran, 85 A.D.3d 1710, 1711, 925 N.Y.S.2d 790 [4th Dept. 2011]). We therefore modify the order by denying defendants’ cross motion and reinstating the complaint against them.