Ramkumar v. Grand Style Transportation Enterprises Inc.

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the complaint reinstated.

The record raises a triable issue of fact as to whether plaintiff has offered “some reasonable explanation” for the cessation of physical therapy treatment for his injury (Pommells v Perez, 4 NY3d 566, 574 [2005]). Plaintiff was asked at his deposition when he was last treated, and he replied that “they cut me off like five months.” The Appellate Division held that a “bare assertion that insurance coverage for medically required treatment was exhausted is unavailing without any documentary evidence of such or, at least, an indication as to whether an injured claimant can afford to pay for the treatment out of his or her own funds” (94 AD3d 484, 485 [2012]).

We stated in Pommells that a plaintiff claiming “serious injury” within the meaning of the No-Fault Law “must offer some reasonable explanation” for terminating treatment (4 NY3d at 574). We did not require any particular proof regarding that explanation, although we recognized that there is “abuse of the No-Fault Law in failing to separate ‘serious injury’ cases, which may proceed to court, from the mountains of other auto accident claims, which may not” (Pommells, 4 NY3d at 571; see Perl v Meher, 18 NY3d 208, 214 [2011]).

The Appellate Division’s requirement that plaintiff either offer documentary evidence to support his sworn statement that his no-fault benefits were cut off, or indicate that he could not afford to pay for his own treatment, is an unwarranted expansion of Pommells. Plaintiff testified at his deposition that “they” (which a reasonable juror could take to mean his no-fault insurer) cut him off, and that he did not have medical insurance at the time of the accident. While it would have been preferable for plaintiff to submit an affidavit in opposition to summary judgment explaining why the no-fault insurer terminated his benefits and that he did not have medical insurance to pay for further treatment, plaintiff has come forward with the bare minimum required to raise an issue regarding “some reasonable explanation” for the cessation of physical therapy. Additionally, the “qualitative assessment of . . . plaintiffs condition” (Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]) rendered by the physician who performed arthroscopic surgery on plaintiffs knee was that plaintiffs meniscal tear injury was causally related to the car accident, and that the meniscus has permanently lost its stability with onset of scar tissue, instability, loss of range of motion, and pain, which plaintiff will have for the rest of his life.

On this record, summary judgment should not have been granted.