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CPLR § 3212…cont

As previously stated, ever where there is ample proof of a plaintiff’s injury, certain factors may nonetheless override a plaintiff’s objective medical proof of limitations and permit dismissal of a plaintiff’s complaint. Specifically, additional contributing factors such as a gap in treatment, an intervening medical problem or a pre-existing condition would interrupt the chain of causation between the accident and the claimed injury. The Court finds that neither plaintiff nor the examining physician adequately explained the cessation of her treatment. Additionally, plaintiff did not provide the Court with evidence of any physical therapy she may or may not have been taking part in since the date of the accident. Also, there was no statement from any doctors that plaintiff had reached her maximum possible medical improvement and that further treatment was unnecessary.

Consequently, as plaintiff had an approximately two year gap in treatment and failed to adequately explain said cessation of treatment, the Court finds that these factors override plaintiff’s objective medical proof of limitations and permits dismissal of plaintiff’s Verified Complaint.

Finally, plaintiff’s deposition testimony does not establish that she was unable to perform substantially all of the material acts which constitute his usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury. Plaintiff attended school in a full time capacity shortly after the accident. Based on the above, the Court finds that plaintiff has failed to establish by competent medical proof that she sustained a “permanent consequential limitation of use of a body organ or member,” a “significant limitation of use of a body function or system” or “a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.”

Accordingly, defendant’s motion, pursuant to the Insurance Law of the State of New York, for an order granting her summary judgment on the ground that plaintiff did not sustain a “serious personal injury” in the subject accident as defined by New York State Insurance Law § 5102(d) is hereby granted and plaintiff’s Verified Complaint is dismissed in its entirety.

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