McCoy v Hall

[*1] McCoy v Hall 2005 NY Slip Op 51920(U) [10 Misc 3d 129(A)] Decided on November 23, 2005 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 23, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: NOVEMBER 23, 2005 April 2005 McCooe, J.P., Gangel-Jacob, Schoenfeld, JJ.


Henry McCoy, Jr., Plaintiff-Respondent, NY County Clerk's No. 570136/05 Calendar No. 05-090

against

Donna M. Hall and Linette Hall, Defendants-Appellants.

Defendants appeal from an order of Civil Court, Bronx County (Francis M. Alessandro, J.), dated July 7, 2004, which denied their motion for summary judgment dismissing the complaint.

PER CURIAM:

Order (Francis M. Alessandro, J.), dated July 7, 2004,
reversed, with $10 costs, defendants' motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

Plaintiff's contention that he suffered a "serious injury" (Insurance Law § 5102[d]) is undermined by a dearth of competent evidence regarding the injury and treatment at the time of the accident and thereafter. There are no statements in the record from any treating physician (see Beaubrun v New York City Tr. Auth., 9 AD3d 258 [2004]). Although plaintiff underwent physical therapy for a month before returning to work, there is no competent medical evidence detailing the course of this therapy, its necessity or its outcome (see Bent v Jackson, 15 AD3d 46 [2005]; Thompson v Abbasi, 15 AD3d 95 [2005]). Despite a positive MRI test in 1994, plaintiff was not diagnosed with ligament injury in his left knee until 2004, 11 years after the accident (see Shinn v Catanzaro, 1 AD3d 195 [2003]). These circumstances render plaintiff's expert's opinions as to causation, significance and permanence conclusory and inadequate to raise a triable issue sufficient to defeat summary judgment (id.; see also Arjona v Calcano, 7 AD3d 279 [2004]).

This constitutes the decision and order of the Court.
Decision Date: November 23, 2005