Kooblall v. Morris

276 A.D.2d 595, 714 N.Y.S.2d 903, 2000 N.Y. App. Div. LEXIS 10396

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 16, 2000
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendant East Coast Shelving Systems, Inc., appeals from a judgment of the Supreme Court, Kings County (Dowd, J.), entered August 11, 1999, which, upon, inter alia, a jury verdict on the issue of damages and the denial of its motion pursuant to CPLR 4404 for judgment in its favor as a matter of law, is in favor of the plaintiffs and against it in the principal sum of $120,000.

Ordered that the judgment is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The evidence at trial was insufficient, as a matter of law, to prove that the plaintiff Pooran Kooblall sustained a serious injury within the meaning of Insurance Law § 5102 (d) (see, Keane v Maringola, 270 AD2d 458). The testimony of one of the injured plaintiffs medical experts, an orthopedic surgeon, was based upon an examination which took place several years before trial, rather than upon a recent examination (see, Gaddy v Eyler, 79 NY2d 955, 958; Guzman v Michael Mgt., 266 AD2d 508; Kosto v Bonelli, 255 AD2d 557). Moreover, the injured plaintiff’s other witness, a chiropractor, failed to specify the extent or degree of limitation of movement experienced by the injured plaintiff in connection with the injuries to his spine and the associated muscles and ligaments of his back (see, Licari v Elliott, 57 NY2d 230, 239; Kosto v Bonelli, supra; Wilkins v Cameron, 214 AD2d 557).

In light of this conclusion, we do not address the appellant’s remaining contentions. Santucci, J. P., Sullivan, McGinity and Luciano, JJ., concur.