Carter v. Full Service, Inc.
Opinion of the Court
Judgment, Supreme Court, Bronx County (Sallie Manzanet, J.), entered on or about February 6, 2004, awarding plaintiff, after a jury trial, damages for a left-knee injury allegedly incurred in a motor vehicle accident that occurred on September 10, 1999, unanimously reversed, on the law, without costs, and defendants’ motion for a directed verdict granted. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.
On September 10, 1999, plaintiff was involved in a second motor vehicle accident—the one at issue in this action—while riding in the back seat of a livery cab owned by defendant Full Service, Inc. (FSI), and driven by defendant Jose Reyes. Plaintiff testified that he heard his left knee “pop” as his shoulder was thrown forward against the cab partition. Reyes, however, testified that plaintiff was holding his neck after the accident, but that he neither complained about his knee nor held it as if he felt pain there. The records of plaintiff’s postaccident emergency room treatment on September 10 make no mention of any complaint regarding his knees.
Dr. Sedlin again examined plaintiff on September 13, 1999 to determine the injuries caused by the September 10 accident. Based on the September 13 examination, Dr. Sedlin wrote an office note of that date discussing plaintiffs complaints of neck and back pain, but making no mention of any complaint about the knee. A later version of the September 13 note, which Dr. Sedlin claimed to have prepared “[pjrobably somewhere a month later or two months later,” under circumstances he could not recall, was revised to include references to pain in plaintiffs left knee.
Plaintiff was subsequently diagnosed as having a torn anterior cruciate ligament (ACL) of the left knee, for which he underwent surgery in February 2000. That same month, plaintiff commenced this action against FSI and Reyes, seeking to recover for serious injury within the meaning of the No-Fault Law (In
In order to recover damages for noneconomic loss related to a personal injury allegedly sustained in a motor vehicle accident, a plaintiff is required to present competent, nonconclusory expert evidence sufficient to support a finding, not only that the alleged injury is “serious” within the meaning of Insurance Law § 5102 (d), but also that the injury was proximately caused by the accident at issue (see Pommells v Perez, 4 NY3d 566, 574-575 [2005] [defendants were correctly granted summary judgment where the report of plaintiff’s expert “left wholly unanswered the question whether the claimed symptoms . . . were caused by the accident” or, alternatively, by a preexisting medical condition]; id. at 579-580 [same]; Agard v Bryant, 24 AD3d 182 [2005] [same]; Montgomery v Pena, 19 AD3d 288, 289-290 [2005] [defendants were entitled to summary judgment where plaintiffs expert failed to give an “objective basis” for the conclusion that plaintiffs alleged limitations resulted from the accident sued upon, rather than from a prior fall, a prior car accident, or certain preexisting degenerative conditions]). As we stated in Montgomery, in the absence of an explanation of the basis for concluding that the injury was caused by the subject accident, and not by other possible causes evidenced in the record, an expert’s “conclusion that plaintiffs condition is causally related to the subject accident is mere speculation” insufficient to support a finding that such a causal link exists (19 AD3d at 290).
In this case, plaintiffs own evidence established that his left-knee injury may well have been caused not by the September 10 accident involving the instant defendants, but by the September 2 accident that took place eight days before. Nonetheless, Dr. Sedlin, plaintiff’s medical expert, failed to explain how he concluded that the injury was caused by the second accident rather than the first. Plaintiffs own self-serving and conclusory testimony that he did not injure his knee until September 10, in addition to being incredible in view of its contradiction by his
Case-law data current through December 31, 2025. Source: CourtListener bulk data.