RUBENSCCASTRO v. Annette Ruiz, et al., Defendants-Respondents.

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Supreme Court, Appellate Division, First Department, New York.

Jon RUBENSCCASTRO, Plaintiff-Respondent, v. Stephanie ALFARO, et al., Defendants-Appellants, Annette Ruiz, et al., Defendants-Respondents.

Decided: May 23, 2006

TOM, J.P., FRIEDMAN, SULLIVAN, GONZALEZ, CATTERSON, JJ. Cullen and Dykman, LLP, Brooklyn (Kevin C. McCaffrey of counsel), for appellants. Law Office of Martha Gold, New York (Martha Gold of counsel), for Jon Rubensccastro, respondent.

Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered January 24, 2005, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted.   The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

This is a personal injury action which arises out of a motor vehicle accident that occurred on September 11, 2002.   Plaintiff Jon Rubensccastro was a passenger in a vehicle owned by defendants Annette and Victor Ruiz. The vehicle was struck by a car owned and operated by defendants-appellants Stephanie and Hilda Alfaro.

In May 2003, plaintiff was examined by Dr. Shields who concluded that plaintiff suffered a permanent injury.   It is uncontested that plaintiff has received no medical treatment in the three years since he was seen by Dr. Shields.

 The Court of Appeals has often stated that the “legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries” (Toure v. Avis Rent-A-Car Sys. Inc., 98 N.Y.2d 345, 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002], quoting Dufel v. Green, 84 N.Y.2d 795, 798, 622 N.Y.S.2d 900, 647 N.E.2d 105 [1995] ).   The issue of whether a claimed injury falls within the statutory definition of a “serious injury” is a question of law for the courts in the first instance, which may be decided on a motion for summary judgment (Licari v. Elliott, 57 N.Y.2d 230, 237, 455 N.Y.S.2d 570, 441 N.E.2d 1088 [1982];  Martin v. Schwartz, 308 A.D.2d 318, 319, 766 N.Y.S.2d 13 [2003] ).

Once the proponent of a motion for summary judgment has set forth a prima facie case that the claimed injury is not serious, the burden shifts to the plaintiff to demonstrate, by the submission of objective proof of the nature and degree of the injury, that he/she did sustain such an injury, or that there are questions of fact as to whether the purported injury was “serious” (Toure, 98 N.Y.2d at 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Cortez v. Manhattan Bible Church, 14 A.D.3d 466, 467, 789 N.Y.S.2d 117 [2005];  Martin v. Schwartz, supra ).

However, “even where there is objective medical proof, when additional contributing factors interrupt the chain of causation between the accident and claimed injury-such as a gap in treatment ․ summary dismissal of the complaint may be appropriate” (Pommells v. Perez, 4 N.Y.3d 566, 572, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] [emphasis added] ).

 In the instant case, plaintiff's expert fails to explain or even address the more than 18-month gap in medical treatment.   This failure is fatal to plaintiff's case under Pommells.   Therefore, defendants' motion for summary judgment must be granted and the action dismissed (Perez v. Rodriguez, 25 A.D.3d 506, 809 N.Y.S.2d 15 [2006];  Toussaint v. Claudio, 23 A.D.3d 268, 803 N.Y.S.2d 564 [2005] ).