Thomas v Wilkes

[*1] Thomas v Wilkes 2007 NY Slip Op 50810(U) [15 Misc 3d 136(A)] Decided on April 18, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 18, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McCOOE, J.P., SCHOENFELD, KLEIN HEITLER, JJ
.

Leonard Thomas, Plaintiff-Appellant, -and- Minnie E. Thomas, Plaintiff,

against

Cleveland J. Wilkes, Defendant-Respondent.

Plaintiff Leonard Thomas appeals from an order of the Civil Court of the City of New York, Bronx County (Howard H. Sherman, J.), dated July 6, 2005, which granted defendant's motion for summary judgment dismissing the complaint.

PER CURIAM:

Order (Howard H. Sherman, J.), dated July 6, 2005, affirmed, with $10 costs.

By failing to object to its admissibility, plaintiff waived any objection to the evidence submitted in support of defendant's motion for summary judgment, including the "affirmation" of defendant's chiropractor (see Akamnonu v. Rodriguez, 12 AD3d 187 [2004]). Therefore, we consider defendant's submissions on the merits (see Shinn v. Catanzaro, 1 AD3d 195 [2003]). Defendant offered the medical reports of a chiropractor and neurologist, who opined that plaintiff had no disability and that any sprains or strains he may have sustained as a result of the vehicular accident had resolved. This evidence was sufficient to satisfy defendant's initial burden of establishing, prima facie, that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). Plaintiff failed to meet his consequent burden to demonstrate that he sustained serious injury as defined in the statute (see Vasquez v. Reluzco, 28 AD3d 365 [2006]). Since plaintiff's medical expert examined him for the first time four years after the accident, the expert's opinion as to permanence and significance, as well as causation, must be rejected as conclusory and speculative (see generally Arjona v. Calcano, 7 AD3d 279 [2004]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.