Torres v. Gamma Taxi Corp.

97 A.D.3d 440, 948 N.Y.2d 279

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 10, 2012
• Status: Published

Opinions

After their prior motion was decided, defendants discovered that plaintiff had been involved in two previous motor vehicle accidents resulting in injuries to the very body parts at issue here (see CPLR 2221 [e] [2]). Plaintiffs lack of candor at his deposition about the earlier injuries constitutes a reasonable excuse for defendants’ failure to present these facts on the prior motion.

Defendants established prima facie that plaintiff’s alleged injuries were not caused by the subject accident, by submitting a radiologist’s affirmed reports stating that plaintiffs lumbar and cervical spine MRIs revealed multilevel degenerative disc disease, and a neurologist’s affirmation stating that the earlier accidents caused plaintiffs injuries and that plaintiffs present symptoms were mere recurrences of the earlier symptoms (see Pommells v Perez, 4 NY3d 566, 579-580 [2005]). Plaintiff’s expert states conclusorily that he reviewed plaintiff’s newly discovered records from the earlier accidents, but fails to explain their effect on his updated opinion as to causation, and therefore his opinion is too speculative to raise an issue of fact (see id.; Arroyo v Morris, 85 AD3d 679, 680 [2011]).

Plaintiff’s claim of property damage is distinct from his personal injury claim. Indeed, defendants’ motions were directed at the latter only. For that reason, we reject their contention that plaintiff failed to preserve this argument. Concur — Tom, J.P, Andrias and Catterson, JJ.