Ramkumar v. Grand Style Transportation Enterprises Inc.

Smith, J.

(dissenting). “[T]he legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries” (Dufel v Green, 84 NY2d 795, 798 [1995]). Since the statute was enacted, false claims of “serious injury” have done much to undermine the legislative goal. A number of courts, including ours, have pointed out that the no-fault system is riddled with abuse (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 861 [2003] [“Between 1992 and 2001, reports of suspected automobile insurance fraud increased by 275%, the bulk of the increase occurring in no-fault insurance fraud”]; Pommells v Perez, 4 NY3d 566, 571 [2005] [“Abuse . . . abounds”]; Perl v Meher, 18 NY3d 208, 214 [2011] [“No-fault abuse still abounds today”]; Fair Price Med. Supply Corp. v Travelers Indent. Co., 9 Misc 3d 76, 78 [App Term, 2d Dept. 2d & 11th Jud Dists 2005] [“the steep increase in fraudulent no-fault benefits claims”], affd 42 AD3d 277 [2d Dept 2007], affd 10 NY3d 556 [2008]; id., 9 Misc 3d at 83 [Golia, J., dissenting] [“fraudulent claims are an ever increasing issue”]; Metroscan Imaging PC. v GEICO Ins. Co., 8 Misc 3d 829, 831-832 [Civ Ct, Queens County 2005] [“unfortunately well documented . . . deluge of fraudulent claims”]).

In an attempt to keep this problem under some sort of control, we have been less indulgent in the no-fault area than in many others in assessing the quality of proof needed to defeat a summary judgment motion where, as here, defendants have made a prima facie showing that a claim lacks merit. Thus, a plaintiffs own description of his or her symptoms is not enough; “we have required objective proof of a plaintiffs injury” (Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]). Indeed, even a *908doctor’s opinion is not enough unless it is supported “by an objective basis” (id. at 351). We have approved of the approach of courts who treat serious injury claims with “skepticism,” and have said that “failure to grant summary judgment . . . where the evidence justifies dismissal, burdens court dockets and impedes the resolution of legitimate claims” (Pommells, 4 NY3d at 571-572).

It is true that even the most demanding approach cannot assure the summary dismissal of every baseless claim. If plaintiffs and their witnesses are willing to say under oath whatever they have to say to get past summary judgment, they will succeed in doing so, and then “the role of skeptic is properly reserved for the finder of fact, or for a court that . . . has factual review power” (Perl, 18 NY3d at 215). But we nevertheless can and should enforce stringent standards, to assure at least that the summary judgment threshold is not too easy to overcome.

In Pommells, we adopted a rule designed to make unjustifiable recoveries more difficult in so-called “gap in treatment” cases. The rule is that “a plaintiff who terminates therapeutic measures following the accident, while claiming ‘serious injury,’ must offer some reasonable explanation for having done so” (4 NY3d at 574). Today the majority dilutes this rule, finding that plaintiffs ambiguous and self-serving statement at his deposition—“they cut me off like five months”—is a sufficient “reasonable explanation.” We should demand more than this.

If there is indeed a reasonable explanation for plaintiffs cessation of physical therapy, he should have had no trouble in offering much better proof of it. He could have submitted an affidavit in opposition to summary judgment, identifying his no-fault carrier, attaching a copy of the written communication, or describing the oral one, in which the carrier cut him off, and saying what, if any, reason the carrier gave. For all that appears in this record, the carrier might have refused to continue paying for therapy because it did not think plaintiff had an injury serious enough to justify it. Plaintiff could also have said in an affidavit, if he could truthfully do so, that he did not have other insurance or other resources that would cover the cost of treatment.

In declining to impose these simple requirements—all of which a plaintiff with a real explanation for a gap in treatment should find easy to meet—the majority lowers the barriers that courts have erected against baseless no-fault claims. I therefore dissent.

*909Chief Judge Lippman and Judges Graffeo, Pigott, Rivera and Abdus-Saiaam concur; Judge Smith dissents in an opinion in which Judge Read concurs.

Order reversed, with costs, and the complaint reinstated, in a memorandum.