Opinion
19021/04.
Decided May 22, 2008.
Baker, MacEvoy, Morrissey and Moskovitz, P.C., NY, NY.
Gellier and Siegal, 419 Park Ave south, NY, NY.
Michael A Cardozo, Corporation Counsel, NY, NY.
Defendants Washington Ramos and Marlene Ramos (movants) seek an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint of plaintiffs Michelle Coleman, Lashawn Lewis, Nadine Boston and Shamila Clarke on the ground that neither plaintiff sustained a serious injury as defined in Insurance Law § 5102(d). By separate cross motion, movants seek the same relief as against plaintiff Angelia Walton.
Movants allege that a cross motion is necessary because at the time that their motion was made, Walton had not yet appeared for an independent medical exam. Although the court will dispose of the motion on the merits, it is noted that movants should have made a second motion instead of a cross motion, since they are not seeking relief against the moving party ( see CPLR 2215).
Facts and Procedural Background
Plaintiffs commenced this action seeking to recover damages for injuries allegedly sustained in a motor vehicle accident that occurred on March 21, 2003. On that day, plaintiffs were passengers in a van owned by Washington Ramos and operated by Marlene Ramos in the scope of her employment with New Ridgewood Car Service, Inc. At the intersection of Fulton Street and Saratoga Avenue, the van ran over a pot hole and came to an abrupt stop.
Movants' Contentions
In support of their demand for summary judgment, movants argue that none of the plaintiffs sustained a serious injury in the subject accident.
Michelle Coleman
With regard to Coleman, movants allege that in her bill of particulars, she claims that she sustained personal injuries including a tear of the meniscus of the right knee, cervical and lumbosacral sprain, radiculopathy, myofascitis, cephalgia and whiplash. She further claims that she was home for five days as a result of the accident; she so testified at her deposition.
In his affirmed report dated June 25, 2007, Dr. Sol Farkas, an orthopedist, states that Coleman presented with complaints of pain in her right knee. His examination of her lumbar spine revealed no spasm; forward flexion was 60 degrees, with 90 being normal, and lateral bending of 20 degrees, with 30 degrees being normal; straight leg raising was negative. Examination of her cervical spine revealed 80 degrees rotation right and left, with 70 to 80 being normal, and 50 degrees of flexion and extension, with 30 to 50 being normal; Tinel's sign was negative. Her right knee showed no effusion nor bogginess, she exhibited no pain, the knee was stable and had full extension of 135 degrees, which is normal; Apley's, McMurray's and Drawer Signs were negative. Dr. Farkas accordingly concluded that Coleman's injuries had resolved.
Lashawn Lewis
In her bill of particulars, Lewis claims that she sustained injuries including a bulging disc at L5-S1, sprain/strain of the lumbosacral and cervical spine, myofascitis, cephalgia and whiplash. She further claims that she was home for six months as a result of the accident. At her deposition, Lewis testified that at the time of the accident, she was unemployed.
In his affirmed report dated July 20, 2007, Dr. Edward M. Weiland, a neurologist, states that Lewis presented with complaints of pain in her mid and lower back, as well as swelling in her lower extremities. His examination revealed negative Soto Hall, Lhermitte's and Romberg's tests; Lasegue's and Adson's Maneuver; and Fabere-Patrick and Hohman's sign. Dr. Weiland further notes that the range of motion in Lewis' cervical spine, lumbar spine and shoulder were within normal limits. Thus, since Lewis had a normal evaluation, with no finding of disability or restriction and no permanent or residual injuries, Dr. Weiland diagnosed her as having sustained thoracic and lumbosacral sprain/strain that resolved.
Nadine Boston
In her bill of particulars, Boston claims that as a result of the subject accident, she sustained injuries including a herniated disc at L4-L5 and L5-S1, a bulging disc at C4-C5 and C5-C6, lumbosacral and cervical sprain, radiculopathy, myofascitis and contusions of the right hand. She further claims that she was home for two months as a result of the accident. At her deposition, Boston testified that she missed approximately one month of work.
In his affirmed report dated June 25, 2007, Dr. Farkas states that Boston presented with complaints of numbness and pain and in her back, radiating to her left leg. His examination of her lumbar and cervical spine revealed no spasm and normal forward flexion, lateral bending and extension; straight leg raising was negative. Dr. Farkas accordingly concludes that Boston sustained lumbar injuries that resolved.
Shamila Clarke
In her bill of particulars, Clarke claims that as a result of the subject accident, she sustained injuries including lumbosacral and cervical sprain, myofascitis, radiculopathy, cephalgia, whiplash and a cerebral concussion. Clarke further claims that she was home for three weeks as a result of the accident. At her deposition, Clarke testified that she missed two weeks of school.
In his affirmed report dated June 22, 2007, Dr. Weiland states that Clarke presented with complaints of mid and lower back discomfort. His examination revealed full range of motion in the cervical spine, lumbar spine and shoulders; the straight leg raising test, Fabere-Patrick Sign and Adson's Maneuver were negative. Thus, since she had a normal evaluation, with no finding of disability or restriction and no permanent or residual injuries, Dr, Weiland diagnosed Clarke as having sustained cervical/lumbar/thoracic sprains/strains that resolved.
Angelia Walton
In her bill of particulars, Walton claims that as a result of the subject accident, she sustained injuries including a tear of the meniscus, contusion and joint effusion of the left knee; cervical and lumbosacral strain/sprain; cephalgia; radiculitis; and whiplash. She further claims that she was confined to home for three days as a result of the injuries sustained in the accident. At her deposition, Walton testified that she was unemployed at the time of the accident.
In his affirmed report dated August 6, 2007, Dr. Farkas notes that Walton presented with complaints of intermittent pain and numbness in her left knee. His examination of her lumbar and cervical spine revealed no spasms and full range of motion; examination of the left knee revealed negative Paley's, McMurray's and Drawer signs and range of motion of her knee was 125 degrees, with 135 being normal. Dr. Farkas opined, however, that this decreased ranged of motion was due to plaintiff's "large body habitus," i.e., she is 5'11" tall and weighs 300 pounds. Dr. Farkas accordingly concludes that Walton sustained low back and left knee injuries that resolved.
Movants' Entitlement to Summary Judgment
The Law
To succeed on a motion for summary judgment, a defendant must meet an initial burden of establishing that a plaintiff did not sustain a permanent consequential limitation of use of a body organ or member, or significant limitation of use of a body function or system, or that he or she was not prevented from performing substantially all of his or her usual and customary daily activities for 90 of the first 180 days following the accident within the meaning of Insurance Law § 5102 (d) ( see e.g. Gaddy v Eyler, 79 NY2d 955; Gonzalez v Green , 24 AD3d 939 ). It is well established that "the court should decide the threshold question of whether the evidence would warrant a jury finding that the injury falls within the class of injuries that, under no-fault, should be excluded from judicial remedy" ( Licari v Elliott, 57 NY2d 230, 238).
On a motion for summary judgment, "a defendant can establish that the plaintiff's injuries are not serious within the meaning of Insurance Law § 5102(d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim of serious injury" ( Grossman v Wright, 268 AD2d 79, 83-84). Once the defendant has established a prima facie case that the plaintiff did not sustain a serious injury, the burden shifts to the plaintiff to "come forward with admissible proof to raise a triable issue of fact" ( Napoli v Cunningham, 273 AD2d 366). If the plaintiff is unable to meet this burden, summary judgment will be granted to defendant ( see e.g. Ginty v McNamara, 300 AD2d 624; Attanasio v Lashley, 223 AD2d 614, 614-15; Sotirhos v Pinello, 209 AD2d 687, 687-88).
Discussion
The court finds that movants have fail to sustain their burden of proof with regard to Coleman, since Dr. Farkas' examination of her revealed limitations of 10 to 30 degrees in the range of motion of her lumbar spine. Hence, the report identified a triable issue of fact as to whether Coleman exhibited significant limitations in range of motion as a result of the accident ( see e.g. O'Shea v. Johnson , 49 AD3d 614 ; accord Tchjevskaia v Chase , 15 AD3d 389 [the affirmation of defendants' examining orthopedist disclosed that the orthopedist actually recorded limitations in plaintiff's ranges of motion, despite his ultimate conclusion that the plaintiff did not sustain a serious injury]). Accordingly, that branch of the motion seeking summary judgment dismissing Coleman's claim is denied, without the need to consider whether her papers in opposition are sufficient to raise a triable issue ( see e.g. Page v Belmonte , 45 AD3d 825 , 825; Tavarez v Jackson , 41 AD3d 833 ). In so holding, the court notes that Dr. Farkas' assertion that these limitations in Coleman's range of motion are self imposed raises an issue of fact that cannot be resolved on the papers now before this court ( see e.g. Martinez v Pioneer Transp. , 48 AD3d 306 , 307 [where conflicting medical evidence was offered and varying inferences could be drawn therefrom, the question was one for the jury]; accord Noble v Ackerman, 252 AD2d 392, 395).
The court also notes that in the papers submitted in opposition to the motion, Coleman annexes the affidavit of Dr. Jeff J. Mollins, a chiropractor, who examined her on December 21, 2007 and found range of motion limitations in her cervical and lumbar spine, as well as an affirmed report from Dr. Virenda Bharel, her treating physician, who similarly found range of motion limitations immediately following the subject accident.
With regard to the other plaintiffs, the affirmed reports of Drs. Farkas and Weiland, along with the deposition testimony of each, establish that none sustained a serious injury in the subject accident ( see e.g. Norona v Manhattan Bronx Surface Tr. Operating Auth. , 40 AD3d 480 , 480 [defendants made a prima facie showing that plaintiff sustained no serious injuries with evidence including, inter alia, the affirmation of a physician who examined plaintiff seven years after the accident and concluded, after fairly describing the various range of motion tests he performed and their qualitatively normal results, that there was no objective basis for plaintiff's complaints of pain]). In so holding, the court notes that although Dr. Farkas found a 10 degree limitation in the range of motion of Walton's left knee, he opined that the limitation was due to her large size. Accordingly, the burden shifts to Lewis, Boston, Clarke and Walton to submit sufficient evidence to raise an issue of fact with regard to whether each sustained a serious injury.
Plaintiffs' Showing
To refute movants' prima facie showing of entitlement to summary judgment, each plaintiff relies upon her own affidavit, in which she enumerates the injuries sustained in the subject accident and alleges that she thereafter sought treatment from Dr. Bharel and Dr. Yefim Sosonkin. Each also relies upon affirmed reports from Dr. Bharel, wherein he discusses the results of his examination of each on March 24, 2003, and an affirmed final report when treatment ended. Each further avers that she discontinued treatment because her no-fault insurance would no longer pay and she did not have the funds.
In addition, each plaintiff relies upon an affidavit from Dr. Mollins, in which he sets forth the findings of his examination of each plaintiff on December 21, 2007. Dr. Mollins also alleges that plaintiffs terminated treatment because they did not have the funds and because they had reached a plateau at which further treatment would not offer any benefit.
Each plaintiff also annexes several unsworn or unaffirmed reports concerning medical treatment received, including reports from MRIs and X-rays; reports from Dr. Sosonkin, annexing results from sensory nerve conduction tests; chiropractic treatment records from Dr. Tartaglia; reports from Dr. Seidman, addressing plaintiffs' psychological issues; acupuncture treatment reports from Shen-Long's Acupuncture P.C.; physical therapy reports from Allcity Medical Diagnostic Treatment Services, Inc.; and range of motion testing results from OnsiteMedical Testing.
Nadine Boston
In his affidavit, Dr. Mollins alleges that when he examined Boston, she was experiencing pain in her neck and low back. He found that the range of motion in her spine was restricted 30% to 50% of normal; straight leg raising and Kemps Tests were positive and Valsalva's and Dejerine tests elicited pain. Dr. Mollins diagnosed Boston as having sustained herniated discs at L4-L5 and L5-S1, bulging discs at C4-C5 and C5-C6, radiculopathy, lumbosacral sprain/strain, and cervicalagia; he opined that these injuries were caused by the subject accident and are permanent in nature.
In his first affirmed report, Dr. Bharel noted that Boston had complaints including neck, back and hand pain caused by the accident. His examination revealed tenderness of the cervical and lumbar spine, with range of motion decreased by 15 to 30, along with swelling of the right hand. Dr. Bharel diagnosed Boston as having sustained injuries including sprain of the cervical and lumbar spine, radiculopathy and injury to her right hand; he recommended that she seek treatment from a chiropractor and an acupuncturist. In his final report, dated June 25, 2003, Dr. Bharel noted that Boston had complaints of pain in her neck and back, and swelling of the right hand. His examination revealed moderately restricted range of motion of the cervical spine, lumbosacral spine and right hand. Dr. Bharel accordingly opined that the injuries sustained by Boston have permanent residuals; he recommended that she continue physical therapy and home exercises. In an affirmed report dated April 24, 2003, Dr. Steven Brownstein stated that Boston sustained bulging discs at C4-C5 and C5-C6.
Although not indicated in Dr. Bharel's reports, it is assumed that his range of motion testing refers to degrees.
Lashawn Lewis
In his affidavit, Dr. Mollins notes that when he examined Lewis, she presented with pain in her back and neck. His examination revealed that the range of motion in her spine was restricted 20% to 50% of normal; straight leg raising and Kemps test were positive, while Valsalva's and Dejerine tests elicited pain. Dr. Mollins accordingly diagnosed Lewis as having sustained a bulging disc at L5-S1, radiculopathy, lumbosacral sprain/strain, and cervicalagia; he opined that these injuries were caused by the subject accident and are permanent in nature.
In his first affirmed report, Dr. Bharel noted that Lewis presented with complaints including neck, lower back and head pain caused by the accident. His examination revealed tenderness of the cervical and lumbar spine, with range of motion decreased by 15 to 40; Soto Hall, cervical distraction, Lasegue's and Kemps tests were positive. Dr. Bharel diagnosed Lewis as having sustained injuries including a sprain of the cervical and lumbar spine and radiculopathy; he recommended that she seek treatment from a chiropractor and an acupuncturist. In his final report, dated June 19, 2003, Dr. Bharel noted that Boston had complaints of pain in her neck and back. His examination revealed moderately restricted range of motion of the cervical and lumbosacral spine and he noted a bulging disc at L5-S1. Dr. Bharel accordingly opined that the injuries sustained by Lewis have permanent residuals; he recommended physical therapy and home exercises. In an affirmed report dated April 14, 2003, Dr. Bronwstein noted no bugling or herniated discs in the cervical spine; in an affirmed report dated April 29, 2003, he noted that Lewis sustained a bulging disc at L5-S1 in her lumbosacral spine.
Shamila Clarke
In his affidavit, Dr. Mollins alleges that when he examined Clarke, she presented with complaints including pain in her low back and neck. At that time, he found that the range of motion of her lumbar spine was restricted 20% to 40% of normal; Kemps test was positive and Valsalva's and Dejerine tests elicited pain. Dr. Mollins diagnosed her as having sustained radiculopathy, lumbosacral sprain/strain and cervicalagia; he opined that these injuries were caused by the subject accident and are permanent in nature.
In his first affirmed report, Dr. Bharel noted that Clarke presented with complaints including pain in her lower back and left breast. His examination revealed tenderness of the lumbar spine, with range of motion decreased by 20 to 40; Lasegue's and Kemps test and Yoeman's sign were positive. Dr. Bharel diagnosed Clarke as having sustained injuries including a sprain of the lumbosacral spine and radiculopathy; he recommended that she seek treatment from a chiropractor and an acupuncturist. In his final report, dated May 28, 2003, Dr. Bharel noted that Clarke continued to have complaints of pain in her neck and back. His examination revealed moderately restricted range of motion of the lumbosacral spine due to pain. Dr. Bharel accordingly opined that the injuries sustained by Clarke have permanent residuals; he recommended physical therapy and home exercises.
Angelia Walton
In his affidavit, Dr. Mollins alleges that when he examined Walton, she presented with complaints including neck, low back and left knee pain. At that time, he found that the range of motion of her cervical spine was restricted 10% to 20% of normal and the range of motion of her left knee was drastically reduced in all directions; a cervical compression, Valsalva's and Dejerine test elicited pain; Kemps and straight leg raising test were positive. Dr. Mullins diagnosed Walton as having sustained injuries including a cervical sprain/strain, cervicalagia and derangement of the left knee. He opined that these injuries were caused by the subject accident and are permanent in nature.
In his first affirmed report, Dr. Bharel noted that Walton presented with complaints including pain in her neck, lower back and left knee. His examination revealed pain and tenderness of the left knee, cervical spine and lumbosacral spine, with range of motion of her spine decreased by 15 to 35; Soto Hall's, Lasegue's and Kemps tests were positive. Dr. Bharel also noted restricted range of motion in the left knee, with a positive McMurray's sign. Dr. Bharel diagnosed Clarke as having sustained injuries including a sprain of the cervical and lumbosacral spine, radiculopathy and a meniscus tear of the left knee; he recommended that she seek treatment from a chiropractor and an acupuncturist. In his final report, dated May 28, 2003, Dr. Bharel noted that Walton continued to have complaints of pain in her neck, lower back and left knee. His examination revealed moderately restricted range of motion in her left knee, lumbosacral spine and cervical spine. Dr. Bharel accordingly opined that the injuries sustained by Walton have permanent residuals; he recommended physical therapy and home exercises.
The Law
With respect to the objective medical evidence required to be submitted by plaintiff in order to defeat a motion for summary judgment in a serious injury action, it is well settled that such evidence must be based upon a recent examination of the plaintiff ( see Sullivan v Johnson , 40 AD3d 624 , 624; Marziotto v Striano , 38 AD3d 623 , 624; Albano v Olfano, 36 AD3d 728, 728; Whitfield-Forbes v Pazmino, 36 AD3d 901, 901; Mullings v Huntwork , 26 AD3d 214 , 216). In order to defeat a defendant's prima facie showing of entitlement to judgment, a plaintiff is required to come forward with competent admissible medical evidence, based on objective findings, sufficient to verify his or her subjective complaints of pain and limitation of motion ( see e.g. Oliva v Gross , 29 AD3d 551 ; Batista v Olivo , 17 AD3d 494 , citing Kauderer v Penta, 261 AD2d 365; Carroll v Jennings, 264 AD2d 494). Further, any determination of permanency with regard to the claimed injuries must be based upon specifically identified objective medical evidence and cannot consist of mere conclusory or speculative statements of said physician that the alleged injuries are permanent in nature ( see generally Piperis v Wan , 49 AD3d 840 ; Vaughan v Baez, 305 AD2d 101, 102; Mickelson v Padang, 237 AD2d 495, 496; Decker v Stang, 243 AD2d 1033, 1037, lv denied 91 NY2d 812). In addition, where a gap in treatment exists, such gap must be explained in order for plaintiff to avoid summary judgment dismissing his or her claim of serious injury ( see Pommells v Perez , 4 NY3d 566 , 572; Perez v Rodriguez , 25 AD3d 506 , 507)
Discussion
The court first notes that it is well settled that the reports of the plaintiffs' medical providers, which are not affirmed, are inadmissible and hence are insufficient to raise a triable issue of fact ( see e.g. Marrache v Akron Taxi, ___ AD3d ___, 2008 NY Slip Op 3599 [2008]; Scotto v Suh, ___ AD3d ___, 2008 NY Slip Op 3629 [2008]; Sharma v Diaz , 48 AD3d 442 , 442; Cohen v A One Prods. , 34 AD3d 517 ; Felix v New York City Tr. Auth. , 32 AD3d 527, 528; Legendre v Bao , 29 AD3d 645 ; Vishnevsky v Glassberg , 29 AD3d 680 ). Accordingly, the court will not consider the unaffirmed reports included in plaintiffs' opposition papers. Further, plaintiffs' subjective complaints of pain are insufficient, on their own, to raise a triable issue of fact as to whether she sustained a serious injury ( see e.g. Scheer v Koubek, 70 NY2d 678; Ranzie v Abdul-Massih , 28 AD3d 447 ; Picott v Lewis , 26 AD3d 319 ; Khan v Hamid , 19 AD3d 460 ; Sims v Megaris , 15 AD3d 468 , lv denied 5 NY3d 703).
The court also notes that although it is also well settled that "[t]he mere existence of a herniated or bulging disc, and even a tear in a tendon, is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injury and its duration" ( Yaroslav Shvartsman v Vildman , 47 AD3d 700 , 701, citing Patterson v New York Alarm Response, 45 AD3d 656; Tobias v Chupenko , 41 AD3d 583 , 584; Mejia v DeRose , 35 AD3d 407 , 407-408; accord Tapia v Dattco , 32 AD3d 842 ; Yakubov v CITING Trans. , 30 AD3d 509 , 510; Hernandez v DIVA Cab , 22 AD3d 722 ; Kearse v New York City Tr. Auth. , 16 AD3d 45 ), herein, the affirmed reports of Dr. Bharel proffered competent medical evidence that showed range of motion limitations that were contemporaneous with the subject accident with regard to Boston and Lewis ( cf. Ferraro v Ridge Car Serv. , 49 AD3d 498 ; Deutsch v Tenempaguay , 48 AD3d 614; D'Onofrio v Floton , 45 AD3d 525 , 525). Similarly, the affidavit of Dr. Mollins indicates that plaintiffs suffered continuing, quantified range of motion limitations, based upon a recent examination and objective testing ( see e.g. Djetoumani v Transit, ___ AD3d ___, 2008 NY Slip Op 3580 [2008]). With regard to Clarke and Walton, however, "sprains and strains are not serious injuries within the meaning of Insurance Law § 5102(d)" ( Byam v Waltuch, ___ AD3d ___, 2008 NY Slip Op 3576, 2 [2008]; Rabolt v Park, ___ AD3d ___, 2008 NY Slip Op 3619, 2 [2008], Washington v Cross , 48 AD3d 457 ; Hasner v Budnik , 35 AD3d 366 , 367-368).
In disposing of the instant motions, it must also be noted that the evidence before the court establishes that each of the plaintiffs terminated treatment in May or June of 2003 and was not seen again until examined by Dr. Mollins on December 21, 2007. In addressing the issue of a gap in treatment, it has been held that "[w]hile a cessation of treatment is not dispositive the law surely does not require a record of needless treatment in order to survive summary judgment a plaintiff who terminates therapeutic measures following the accident, while claiming serious injury,' must offer some reasonable explanation for having done so" ( Pommells, 4 NY3d at 574). Accordingly, where a plaintiff and his or her doctor do not provide any explanation as to why he or she failed to pursue treatment, a defendant's motion for summary dismissal of the complaint will be granted ( see e.g. Ferraro, 49 AD3d 498 [unexplained gap in treatment of 22 months]; Wright v Rodriguez , 49 AD3d 532 [unexplained gap in treatment of 16 months]; Otero v 971 Only U , 36 AD3d 430 [unexplained gap in treatment of more than one year]; Black v Regalado , 36 AD3d 437 [unexplained gap in treatment of 15 months]; Milazzo v Gesner , 33 AD3d 317 [unexplained gap in treatment of three years]).
Herein, the plaintiffs terminated treatment four and one-half years before each was examined by Dr. Mollins in December 2007. The affirmation of the plaintiffs' examining physician, Dr. Bharel, does not provide any explanation for the significant gap between the plaintiffs' initial treatment and her subsequent visit to Dr. Mollins. In fact, in his final report, Dr. Bharel recommended that all of the plaintiffs continue with physical therapy and home exercises ( see generally Smith v Brito , 23 AD3d 273 [plaintiff's claim of serious injury was fatally undermined by virtue of her failure to explain notable gaps in her treatment for the alleged injuries]).
The court also finds Dr. Mollins' opinion with regard to the futility of further treatment, made approximately four years after treatment terminated, to be without probative value. In this regard, it has been held that:
"The bare assertion by plaintiff's expert, who first examined plaintiff nearly four years after the purported accident, that at the time treatment was terminated plaintiff's condition had plateaued and that further treatment was unlikely to be efficacious, was insufficient to counter the inference naturally arising from the cessation of treatment, that any injury sustained by plaintiff as a result of the alleged accident was not serious' as that term is defined in the statute ( see Mullings v Huntwork , 26 AD3d 214 ; Smith v Brito , 23 AD3d 273 )."
( Brown v City of New York , 29 AD3d 447 , 448; see generally Mullings v Huntwork , 26 AD3d 214 , 216 [since the doctor last saw plaintiff eight months prior to the time that she terminated treatment, his suggestion that she had reached maximum medical improvement was purely speculative]; cf. Paz v Wydrzynski , 41 AD3d 453 , 453 [plaintiff's chiropractor adequately explained the gap in plaintiff's treatment where he discharged plaintiff, although he was still in significant pain, because he had reached his maximum recovery and any further treatment would be merely palliative]). Moreover, as noted above, Dr. Mollins' assertion is belied by Dr. Bharel's recommendation that all of the plaintiffs continue with physical therapy and home exercises.
In addition, plaintiffs' unsubstantiated claims that each was unable to afford further treatment after no fault benefits were exhausted has been held insufficient to explain a lengthy gap in treatment, particularly since each plaintiff alleges that she continued to suffer pain ( see e.g. Paul v Allstar Rentals , 22 AD3d 476 , 477-478 [plaintiff's assertion that the two-year gap in treatment was due to a lack of medical insurance and his limited financial circumstances was not supported by corroborative proof]). In this regard, it must also be noted that it has been held that:
"Plaintiff testified at his examination before trial that he stopped treatment because his no-fault benefits were discontinued. However, no substantiation of this claim is provided to the court, nor is any evidence submitted concerning plaintiff's actual financial ability, or lack thereof, to obtain treatment. At least one other trial court has insisted on substantiation of plaintiff's proffered explanation for a significant gap in treatment."
( Pinales v CSC Holdings, 2002 NY Slip Op 50410U, 11 [2002]; accord Gomez v Ford Motor Credit Co. , 10 Misc 3d 900 , 902-903). Herein, plaintiffs fail to corroborate the claim that each was unable to afford further treatment after no fault benefits were exhausted.
Finally, none of the admissible medical submissions by plaintiffs are sufficient to establish that she sustained a medically determined injury of a nonpermanent nature which prevented her from performing her usual and customary activities for 90 of the 180 days following the subject accident ( see e.g. Shvartsman, 47 AD3d 700; accord Morris v Edmond , 48 AD3d 432 , 433 [plaintiff failed to proffer competent medical evidence that she sustained a medically-determined injury of a nonpermanent nature which prevented her, for 90 of the 180 days following the subject accident, from performing her usual and customary activities]; Thompson v Abbasi , 15 AD3d 95 , 101 [in light of plaintiff's admission that he only missed one week of work, his unsubstantiated claim that his injuries prevented him from performing substantially all of the material acts constituting his customary daily activities during at least 90 of the first 180 days following the accident is insufficient to raise a triable issue of fact]).
Conclusion
The motion and cross motion by defendants Washington Ramos and Marlene Ramos for an order dismissing the complaint as against them is granted only to the extent of dismissing the claims asserted by Angelina Walton, Leshawn Lewis, Nadine Boston and Shamila Clarke on the ground that movants established that these plaintiffs did not sustain a serious injury as defined in Insurance Law § 5102(d). The clerk of the Court is directed to enter judgment dismissing the complaints of Angelia Watson, Leshawn Lewis, Nadine Boston and Shamila Clarke as against the defendants Washington Ramos and Marlene Ramos.
The foregoing constitutes the decision and order of this court.