This page summarizes and comments on a published court decision. It is general information, not legal advice, and reading it does not create an attorney-client relationship. Every case depends on its own facts. Unless this page says otherwise, The Eskesen Law Firm did not represent any party in this case.
Bottom line
In a New York car accident case, an injured person who claims a “serious injury” needs admissible medical proof linking the injuries to the accident, and that proof must answer any defense claim that the injuries are old, degenerative conditions. Here, the First Department affirmed the dismissal of the claims against two of the defendants because the early treatment records were unsworn and uncertified, and the treating doctor first examined the plaintiff three months after the collision, so he had not seen the injuries when they were new.
The case
- Court
- Appellate Division, First Department
- Decided
- October 6, 2026
- Case
- Gomez v Uber Tech., Inc.
- Citation
- 2026 NY Slip Op 05722
- Official text
- Read the decision on the New York courts’ official reporter site
The facts
The plaintiff claimed injuries to his neck, lower back, right knee, and right shoulder from a motor vehicle collision. Two of the defendants moved for summary judgment, arguing that he had not sustained a serious injury under Insurance Law § 5102(d). Their expert radiologist reviewed the MRI images and concluded that the conditions shown were preexisting and degenerative, and could not have developed in the time between the collision and the date of the images. The Supreme Court, Bronx County, granted the motion, and the plaintiff appealed.
The holding
The First Department unanimously affirmed the dismissal of the complaint against the two defendants who brought the motion. The radiologist’s report was “sufficient to establish that the collision did not cause plaintiff’s alleged injuries,” shifting the burden to the plaintiff to address the preexisting conditions (2026 NY Slip Op 05722, *1). “The unsworn and uncertified medical records documenting treatment in the first few months after the collision are inadmissible and cannot be bootstrapped into evidence by attaching them to an affirmed report” (id.). His treating physician “first examined plaintiff three months after the accident and therefore did not contemporaneously observe plaintiff’s injuries,” so the physician’s report, although admissible, “failed to raise an issue of fact as to causation” (id.).
What changed
Nothing new: this applies settled law, including the Court of Appeals’ decisions in Perl v Meher and Pommells v Perez.
What it means
- In many New York car accident cases, an injured person can recover for pain and suffering only by showing a “serious injury” as the Insurance Law defines it.
- When the defense says the injuries are old wear and tear, the injured person’s doctor must answer that.
- Medical records count only if they come in properly. Here, the early records were unsworn and uncertified, and attaching them to a doctor’s affirmed report did not fix that.
- The same day, the court applied the same principles in two other cases: an examination nearly three years after the accident was insufficient (Vasquez v Uber Tech. Inc., 2026 NY Slip Op 05751, *1), and so was a doctor’s report that did not address the degenerative conditions the defense experts identified (Askins v Upstaging Inc., 2026 NY Slip Op 05715, *1).
Our view
Commentary by Frank N. Eskesen. This section is opinion.
We note that the gap here was three months, not years. In our experience, many injured people go first to an emergency room or their own doctor and do not see a specialist until weeks or months later. This decision shows why the records of those early visits matter, and why they must be in a form the court will accept. We believe there are two principal lessons here. 1. After an accident, follow your doctor’s advice and keep a list of every place you were treated, starting with the emergency room. 2. Lawyers should obtain certified copies of the earliest records and make sure their medical experts address any claim of degeneration directly. Sometimes the first few weeks of records decide the case.
Topics
Court: First Department. Year: 2026. Statutes: Insurance Law § 5102(d). Result: affirmed.
Reviewed by Frank N. Eskesen, admitted in New York since 2000. Decided October 6, 2026. Posted October 6, 2026.
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