Treatment Gaps and Pre-Settlement Funding: What New York Plaintiffs Need to Know

By Jason D. Gabbard, New York attorney (20 years), published author and entrepreneur  ·  Last updated: June 23, 2026

A treatment gap is a period of 30 days or more during which a New York plaintiff stopped treating for accident-related injuries without a documented clinical reason. Under New York’s serious-injury threshold (Insurance Law § 5102(d)) and the controlling case Pommells v. Perez, 4 N.Y.3d 566 (2005), an unexplained gap can let a defendant win summary judgment and dismiss the case entirely. A gap also lowers pre-settlement funding eligibility, because the expected recovery becomes less certain. It is not an automatic disqualification — a documented reason and consistent renewed treatment can preserve both your case and your funding eligibility.

What is a treatment gap in a New York injury case?

A treatment gap is any significant period — typically 30 days or more — during which an injured plaintiff stops receiving medical care for accident-related injuries without a documented clinical reason for the pause. A physician discharge at maximum medical improvement is documented and defensible. Simply stopping because life intervened, coverage lapsed, or symptoms eased is an unexplained gap.

The word documented is the entire fight. If your records show a clinical reason for the pause, it is a medical decision. If they show silence, the defense will characterize that silence as proof you recovered. The distinction is not semantic — under New York law it determines who survives summary judgment.

How does a treatment gap affect my settlement under New York law?

Under Pommells v. Perez, 4 N.Y.3d 566 (2005), the New York Court of Appeals held that a plaintiff who stops treatment while claiming a serious injury must offer a reasonable explanation for doing so. When a defendant supports a summary-judgment motion with an exam report opining the injuries resolved, the burden shifts to the plaintiff to explain the gap — or the case can be dismissed outright.

New York is a no-fault state. To sue for pain and suffering, a plaintiff must clear the “serious injury” threshold of Insurance Law § 5102(d), which includes categories such as fracture, significant disfigurement, permanent consequential limitation, significant limitation of use, and the “90/180” category (a medically determined injury that prevents usual daily activities for 90 of the 180 days after the accident). Courts treat an unexplained gap as evidence that the injury was not serious — and, under Pommells, as a break in the chain of causation between the crash and the claimed injury.

The defense narrative writes itself: three months of treatment, then nothing, then a resumption a year later reads as “recovered, then unrelated complaint.” In Pommells itself, the plaintiff ceased care six months after the accident, sought nothing for over three years, offered no explanation, and the Court of Appeals affirmed dismissal of his claim. The practical effect on cases that survive: they settle lower, move slower, and draw more aggressive litigation.

Does an explained gap still hurt my case?

No — a documented, reasonable explanation neutralizes most of the damage. In Ramkumar v. Grand Style Transportation Enterprises, 22 N.Y.3d 905 (2013), the Court of Appeals held that a plaintiff whose no-fault benefits were cut off offered a sufficient explanation for a gap, and rejected a lower-court demand for documentary proof of the cutoff. An explained gap becomes a credibility question for the jury, not a legal bar.

Recognized reasonable explanations include termination of no-fault benefits, inability to afford out-of-pocket care, and a treating physician’s note that further therapy would be merely palliative. The decisive factor is the contemporaneous record: a brief entry at the time of the cutoff — patient cannot afford continued care after no-fault termination, advised to return if symptoms worsen — converts an “inexplicable” gap into an excused one two years later when the summary-judgment motion lands.

Can I get pre-settlement funding with a treatment gap?

Yes, a treatment gap is not an automatic disqualification for pre-settlement funding, but it lowers eligibility. At just.law, treatment status is one of five primary underwriting variables, and a gap applies a negative modifier to the funding eligibility score. That is not punitive — it reflects case economics: a gap raises the risk of a reduced or contested recovery, and the advance is made against that expected recovery.

A gap also signals timeline risk. Cases where treatment resumed after a break more often involve extended discovery disputes, additional independent medical examinations, and contested causation arguments — each of which lengthens the case. Because a pre-settlement advance is repaid only out of the eventual settlement, a longer timeline changes the underwriting math.

The questions that actually drive the analysis: How long was the gap? Is there a documented reason for it? Has treatment resumed and stayed consistent? What is the underlying injury severity? A three-week gap in a well-documented surgical case is a different animal from a five-month gap in a soft-tissue case with no follow-up. Context governs.

How long is too long for a gap in treatment?

There is no fixed statutory number, but New York courts and carriers generally scrutinize any unexplained pause of roughly 30 days or more, and a multi-month cessation is the highest-risk scenario. Pommells turned on a six-month cessation followed by years of silence. Severity matters: the same 60-day gap is far more damaging to a soft-tissue claim than to a documented surgical injury.

What should I do if I already have a treatment gap?

If you have a gap and your injuries are ongoing, four actions preserve both your case value and your funding eligibility: resume treatment immediately, document any reason for the pause, disclose the gap honestly to your attorney and funder, and keep the gap from becoming the whole story of your case.

Resume treatment now. Get back to a treating physician this week. Consistent ongoing care partially offsets a prior gap; continued gaps compound the damage.

Document the reason. If no-fault benefits lapsed, you relocated, transportation failed, or cost was the barrier, tell your attorney and make sure that context lives in the medical record. Under Ramkumar, that documented reason can defeat the gap defense.

Be honest with your attorney and funder. The gap is already in your records. An undisclosed gap discovered during underwriting delays the process and damages credibility. Disclose it and let the evaluation proceed on accurate facts.

Don’t let the gap become the story. It is one data point. If liability is strong, the injury is serious, and you are treating consistently now, the case still has value. The gap affects that value; it does not erase it.

How does a treatment gap change your funding numbers?

The just.law estimator applies a treatment-gap modifier to both the funding eligibility score and the risk score, which can affect the advance amount available and the applicable rate. You can run a preliminary estimate with and without the gap condition to see the actual differential before you ever submit an application.

One point of accuracy that matters: a just.law advance is non-recourse. It is repaid only if and when your case resolves, out of the settlement proceeds. If your case does not result in a recovery, you owe nothing. just.law operates as a registered pre-settlement funder under New York Financial Services Law Article 10, the statute governing consumer litigation funding in New York.

Frequently asked questions

Can I get funded if I don’t have an attorney yet?

No. You must retain an attorney before applying. Attorney involvement is a prerequisite, not a formality, because a non-recourse advance is repaid from the eventual settlement proceeds, which your attorney administers through the case.

Does the type of injury matter with a gap?

Yes. A soft-tissue case with a 60-day gap is far more exposed than a surgical spinal case with the same gap. Under § 5102(d), severity and objective documentation determine how much weight a gap carries.

What if I stopped treating because I thought I was better?

That is the most common and most legally problematic gap. If symptoms returned and you resumed care, have your physician document that clearly. Under Pommells, the resumption of care after a perceived recovery is a medical story your attorney must be able to tell.

Is a treatment gap a valid excuse if my insurance ran out?

It can be. In Ramkumar v. Grand Style Transportation (2013), New York’s highest court held that a cutoff of no-fault benefits is a reasonable explanation for a gap, and that a plaintiff need not produce documentary proof of the cutoff to rely on it.

If you have questions about your funding eligibility given a treatment gap, run the just.law estimator or have your attorney’s office contact us directly. We’ll tell you where you stand, without obligation.