| Williams v Baldor Specialty Foods, Inc. |
| 2010 NY Slip Op 01430 [70 AD3d 522] |
| February 18, 2010 |
| Appellate Division, First Department |
| Enez Williams, Individually and as Administratrix of the Estate ofEphriam Williams, Deceased, Plaintiff, v Baldor Specialty Foods, Inc., et al.,Defendants. (And Another Action.) Harvey L. Greenberg, Respondent, v Baldor SpecialtyFoods, Inc., et al., Appellants. (And Another Action.) Jennifer Turner, Plaintiff, v Milea LeasingCorp. et al., Appellants, and Executive Motor Tours, Inc., Respondent, et al., Defendant. (AndAnother Action.) |
—[*1] Joseph T. Belevich, Garden City, for Harvey L. Greenberg, respondent. [*2]Lester Schwab Katz & Dwyer, LLP, New York (StevenB. Prystowsky of counsel), for Executive Motor Tours, Inc., respondent.
Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered February 3, 2009,which denied the motion by defendants Baldor Specialty Foods and Emil Castillo Grullon forsummary judgment dismissing plaintiff Greenberg's complaint, unanimously reversed, on thelaw, without costs, the motion granted, and the Greenberg complaint dismissed. The Clerk isdirected to enter judgment accordingly. Appeal from order, same court (Lucy Billings, J.),entered August 24, 2009, which granted Greenberg's motion for summary judgment on liabilityagainst Baldor and Emil Castillo Grullon, and also granted the cross motion by defendantExecutive Motor Tours for summary judgment dismissing all claims and cross claims against itin the action by plaintiff Turner, unanimously dismissed, without costs, as academic in light ofthe foregoing.
By submitting an affirmed report from their medical expert, appellants made a prima facieshowing of entitlement to summary judgment with regard to whether Greenberg had suffered anyserious physical injury, and Greenberg failed to submit any evidence to contradict the expert'sfindings (see generally Pommells vPerez, 4 NY3d 566 [2005]).
Greenberg's 90/180-day claim should have been dismissed because appellants submittedGreenberg's bill of particulars and deposition testimony, which provided that Greenberg hadbeen confined to bed and home and missed work for only two months following the accident (see Knox v Lennihan, 65 AD3d615, 616 [2009]). Greenberg's affidavit in opposition to the motion, in which he claimed hewas unable to work for four months, was tailored to avoid the consequences of his testimony,and constitutes feigned evidence that should be rejected (see Nicholas v New York City Hous. Auth., 65 AD3d 925 [2009]).
Regarding Greenberg's claim of psychological injury as a result of the subject accident(see Chapman v Capoccia, 283 AD2d 798, 799 [2001]), appellants made a prima facieshowing of entitlement to summary judgment by submitting their expert's report. WhileGreenberg did submit his own expert's report, opining that he had suffered post-traumatic stressdisorder as a result of the accident, that the condition was likely to be chronic and permanent andhad rendered him partially disabled, and that he would need treatment for the rest of his life, hefailed to present any contemporaneous objective medical evidence of his injury (see Mullings v Huntwork, 26 AD3d214, 216 [2006]).
Concerning the second order on appeal, in light of our dismissal of his complaint, the issueof liability with respect to Greenberg has been rendered academic. Concur—Friedman,J.P., Sweeny, Nardelli and Freedman, JJ.
[*3]Motion seeking a stay of trial denied as academic.