BROWN v. CITY OF NEW YORK

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Supreme Court, Appellate Division, First Department, New York.

Wayne BROWN, Plaintiff-Appellant, v. The CITY OF NEW YORK, et al., Defendants-Respondents.

Decided: May 23, 2006

FRIEDMAN, J.P., SULLIVAN, WILLIAMS, SWEENY, McGUIRE, JJ. Timothy L. Bompart, Rego Park, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Victoria Scalzo of counsel), for municipal respondents. Steve S. Efron, New York, for The New York City Transit Authority, respondent.

Order, Supreme Court, New York County (Robert D. Lippmann, J.), entered April 19, 2004, which, inter alia, granted the motion and cross motion by defendants New York City Transit Authority and the City of New York for summary judgment dismissing the complaint on the ground that plaintiff had not sustained “serious injury” within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants' expert, an orthopedic surgeon, affirmed that his examination of plaintiff did not disclose any disability and plaintiff failed to provide any reasonable explanation for the undisputed circumstance that he ceased all treatment for his alleged permanent injuries some six months after the accident (see Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ).   The bare assertion by plaintiff's expert, who first examined plaintiff nearly four years after the purported accident, that at the time treatment was terminated plaintiff's condition had plateaued and that further treatment was unlikely to be efficacious, was insufficient to counter the inference naturally arising from the cessation of treatment, that any injury sustained by plaintiff as a result of the alleged accident was not “serious” as that term is defined in the statute (see Mullings v. Huntwork, 26 A.D.3d 214, 810 N.Y.S.2d 443 [2006];  Smith v. Brito, 23 A.D.3d 273, 804 N.Y.S.2d 82 [2005] ).