Ahmed v. Lu and Wang, Index No. 301462/2012 (Sup.Ct. Bronx Cty. 2014)

On March 28, 2014 Judge Kenneth L. Thompson, Supreme Court, Kings County, granted summary judgment to Abrams Gorelick’s client in Ahmed v. Lu and Wang, a motor vehicle accident case. In support of the motion, Abrams Gorelick submitted the affirmed medical report of Dr. Jerry A. Lubliner, an orthopedic surgeon who conducted an IME of the plaintiff and the affirmation of Dr. Michael J. Carciente, a neurologist, who also examined the plaintiff. Both examinations resulted in a finding that plaintiff’s injuries had been fully resolved.

Judge Thompson found that defendant had met the initial burden and established its prima facie entitlement to summary judgment on the grounds that plaintiff had not sustained a “serious injury” as defined by Insurance Law, Section 5102(d) [the “Threshold Law”]. In granting the motion, the Court found it significant that it was undisputed that plaintiff had received treatment for her injuries from November 2010 through January 2011 but had not received any recent treatment. The Court determined that as plaintiff failed to explain her lapse in treatment, the “so called gap in treatment” was, in reality, cessation of all treatment.

The Court found that while a cessation of treatment is not dispositive (as the law does not require a record of needless treatment in order to survive a summary judgment motion), a plaintiff who terminates therapeutic measures following an accident while claiming “serious injury” must offer some reasonable explanation for having done so. The Court found that as neither plaintiff nor her doctors had provided any explanation as to why she failed to pursue treatment for her injuries after the initial six month period, the Court found that plaintiff had failed to come forward with an explanation and thus, granted defendant summary judgment.

Abrams Gorelick’s client was represented by Irwin Miller and Dennis Monaco.