Garcia v McBean

[*1] Garcia v McBean 2010 NY Slip Op 52269(U) [30 Misc 3d 127(A)] Decided on December 30, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 30, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Hunter, Jr., JJ
570511/10.

Edward Garcia, Plaintiff-Respondent,

against

Anthony McBean and Francesco Martin, Defendants, -and- Juan Martinez, Defendant-Appellant.

Defendant Juan Martinez, as limited by his brief, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Nelida Malave-Gonzalez, J.), entered March 31, 2010, which denied his cross motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Nelida Malave-Gonzalez, J.), entered March 31, 2010, insofar as appealed from, reversed, with $10 costs, cross motion of defendant Juan Martinez granted, and the complaint dismissed as against him. The Clerk is directed to enter judgment accordingly.

In opposition to defendant Martinez's prima facie showing that plaintiff did not sustain a "serious injury" within the meaning of Insurance Law § 5102(d), plaintiff failed to raise a triable issue. Plaintiff's submission lacked any evidence showing a physical restriction contemporaneous with the subject motor vehicle accident (see Toulson v Young Han Pae, 13 AD3d 317 [2004]). In this connection, we note that the first documented medical assessment of plaintiff took place more than one month after the accident, interrupting any chain of causation between the accident and the alleged injuries (see Henry v Peguero, 72 AD3d 600 [2010], appeal dismissed 15 NY3d 820 [2010]). The record is also devoid of any evidence of plaintiff's treatment other than two medical examinations (which were conducted 10 years apart) and some testing. While plaintiff claims he submitted to a course of treatment lasting ten months after the accident, he has provided no competent supporting documentation of this alleged treatment. Even taking into account plaintiff's six-year incarceration, the lack of evidence of treatment belies plaintiff's claim that he sustained a serious injury (see Thompson v Abbasi, 15 AD3d 95 [2005]).

Finally, plaintiff has failed to raise a triable issue concerning his claim of serious injury [*2]under the "90/180- day" category. Plaintiff's asserted inability to work for more than 90 days after the accident is not dispositive of his claim (see Weinberg v Okapi Taxi, Inc., 73 AD3d 439 [2010]), and plaintiff offered no competent medical proof of his alleged limitations and their duration (see Zhijian Yang v Alston, 73 AD3d 562 [2010]; Blake v Portexit Corp., 69 AD3d 426 [2010]). Plaintiff's initial neurologist's opinion thatplaintiff was "totally disabled" for an indefinite period is too general to raise an issue of fact (see Blake, supra) and the limitations described in plaintiff's deposition did not amount to "substantially all" of plaintiff's usual and customary daily activities. Moreover, plaintiff conceded at deposition that he was confined to home for a period of only a few weeks.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 30, 2010