Additionally, plaintiff has failed to rebut evidence of a preexisting degenerative condition. Although defendants’ independent experts conclude in their affirmed reports that plaintiff’s MRI films showed evidence of degenerative changes, and chronic degenerative spinal disease which is a pre-existing condition, plaintiff failed to attach evidence from any experts indicating their awareness that plaintiff was suffering from such condition and failed to address the effect of these findings on plaintiff’s claimed accident injury. Hence, plaintiff failed to rebut defendants’ claim sufficiently to raise a triable issue of fact.
Moreover, there is an unexplained gap in treatment or cessation of treatment. Specifically, the record is devoid of any competent evidence from any health care professional of plaintiff’s treatment, need for treatment, or if and why plaintiff’s treatment ceased. Courts have held that a gap in treatment goes to the weight of the evidence, not its admissibility. Here, however, there is not just a gap in treatment, but, apparently, a total lack of competent proof of any treatment whatsoever by a health care professional which is related to any condition allegedly caused by this accident. Plaintiff has inexplicably provided no competent supporting documentation of medical treatment. Plaintiff has failed to submit an affirmation which provides any information concerning the nature of the plaintiff’s medical treatment or any explanation for the several year gap between plaintiff’s medical treatment which appears to have ceased in 2003 and the date of the opposition papers to the instant motion in 2007. Plaintiff proffered no excuse for her failure to submit sworn medical records and doctor’s reports in admissible form concerning her treatment.
Furthermore, plaintiff’s attorney’s affirmation is not admissible probative evidence on medical issues, as plaintiff’s attorney has failed to demonstrate personal knowledge of the plaintiff’s injuries.
Accordingly, the Court granted partial summary judgment in favor of defendants on all categories except for the “90/180″ day category and the complaint is dismissed on all categories except for the ” 90/180″ days category.
Pursuing a claim for a personal injury resulting from an accident can be frustrating. The chase can take forever with no guarantee that the injured can be compensated and the offender will be made liable. Our New York Spinal Injury Lawyer knows the expertise required for claims like these. It is important therefore to only deal with a counsel with knowledge and competence on spinal injury.