Shoyket v Stanford

[*1] Shoyket v Stanford 2004 NY Slip Op 50514(U) Decided on May 25, 2004 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 25, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:PESCE, P.J., PATTERSON and GOLIA, JJ.
NO. 2003-844 K C

MICHAEL SHOYKET, Appellant,

against

ALICIA STANFORD and ARMON STANFORD, Respondents.

Appeal by plaintiff from an order of the Civil Court, Kings County (D. Silber, J.), dated April 4, 2003, which denied plaintiff's motion to vacate a default judgment dismissing the complaint.

Order unanimously affirmed without costs.

By order dated March 28, 2002, the lower court granted, on default, defendants' motion for summary judgment to dismiss the complaint on the ground that plaintiff did not satisfy the threshold requirement of suffering a serious injury under Insurance Law § 5102 (d).

Plaintiff delayed more than five months before moving to vacate the default. On the motion, he failed to submit any medical proof contemporaneous with the accident showing injury to his left wrist and left hand (see Nemchyonok v Peng Liu Ying, 2 AD3d 421 [2003]). Furthermore, plaintiff's doctor failed to explain the five-year gap in treatment (Grammatico v Store Wide Delivery Co., 296 AD2d 379 [2002]). Finally, plaintiff's doctor's report did not refer to the injuries plaintiff allegedly sustained in the accident.
Decision Date: May 25, 2004