Pommells: The Facts, Nothing But the Facts

This article is a criticism of the "Paradigm Shift in No-Fault 'Serious Injury' Litigation" by Joseph D. Nohavicka which concluded that the lower courts of New York were charged with removing fraudulent serious injury cases from the court system pursuant to the Court of Appeal’s Decision in Pommells v. Perez, 4 N.Y.3d 566 (2005). His article argues that the Pommells decision elaborates longstanding guidelines mandated by the Court of Appeals, clarifying the burdens on a plaintiff seeking to defeat summary judgment where there is a gap or cessation of treatment or sufficient proof in support of the motion establishing a pre-existing condition as the cause of plaintiff’s injuries. No duty is placed on trial courts to determine fraud in the summary judgment context.