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Barclay v Rad Cab Corp.
2005 NY Slip Op 51724(U) [9 Misc 3d 137(A)]
Decided on October 25, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 25, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: MARCH 2005 TERM SUAREZ, P.J., McCOOE, SCHOENFELD, JJ.


Winfred Barclay,NY County Clerk's #570695/04 Plaintiff-Appellant, Cal. No. 05-025

against

Rad Cab Corp., Defendant-Respondent, -and- THEOPHILUS PETERS, Defendant.


Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County, entered December 5, 2003 (Wilma Guzman, J.), granting the motion of defendant Rad Cab Corp. for summary judgment dismissing the complaint.


PER CURIAM:

Order entered December 5, 2003 (Wilma Guzman, J.) affirmed, with $10 costs.

There is no evidence of any "serious injury" at the time of the accident (Insurance Law § 5102[d]). Other than plaintiff's allegation that he attended physical therapy commencing three months after the accident, "the record is devoid of any competent evidence of plaintiff's treatment, need for treatment, or why his alleged treatment ended" after several months (see Thompson v Abbasi, 15 AD3d 95 [2005]). Moreover, since plaintiff's medical expert examined him for the first time five years after the accident, his opinion as to permanence and significance, as well as causation, must be rejected as conclusory and speculative (see Arjona v Calcano, 7 AD3d 279 [2004]; Vaughan v Baez, 305 AD2d 101 [2003]).

This constitutes the decision and order of the court.
Decision Date: October 25, 2005