Pou v. E&S Wholesale Meats, Inc., 68 A.D.3d 446 (N.Y. App. Div. 2009). · Go Syfert
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Pou v. E&S Wholesale Meats, Inc., 68 A.D.3d 446 (N.Y. App. Div. 2009). Cases Citing This Book View Copy Cite
11 citation events (11 in the last 25 years) across 1 distinct court.
Strongest positive: Komina v. Gil (nyappdiv, 2013-06-25)
Top citers, strongest first. 7 distinct citers. How cited ↗
discussed Cited as authority (rule) Komina v. Gil
N.Y. App. Div. · 2013 · confidence medium
Furthermore, plaintiffs chiropractor made no attempt to explain the conflicting findings of the tests he performed during plaintiffs physical examination and the MRI reports of plaintiff’s radiologist, which found normal lumbar and cervical spine images with no evidence of disc bulging or herniation, and defendants are thus entitled to summary judgment on this basis (Jno-Baptiste v Buckley, 82 AD3d 578 [1st Dept 2011], citing Pou v E&S Wholesale Meats, Inc., 68 AD3d 446, 447 [1st Dept 2009]).
discussed Cited as authority (rule) Komina v. Gil
N.Y. App. Div. · 2013 · confidence medium
Furthermore, plaintiffs chiropractor made no attempt to explain the conflicting findings of the tests he performed during plaintiffs physical examination and the MRI reports of plaintiff’s radiologist, which found normal lumbar and cervical spine images with no evidence of disc bulging or herniation, and defendants are thus entitled to summary judgment on this basis (Jno-Baptiste v Buckley, 82 AD3d 578 [1st Dept 2011], citing Pou v E&S Wholesale Meats, Inc., 68 AD3d 446, 447 [1st Dept 2009]).
discussed Cited as authority (rule) Hall v. Hecht
N.Y. App. Div. · 2012 · confidence medium
In opposition, the plaintiffs failed to provide a reasonable explanation for a cessation of the injured plaintiffs medical treatment (see Pommells v Perez, 4 NY3d 566, 574 [2005]; Pou v E&S Wholesale Meats, Inc., 68 AD3d 446, 447 [2009]), and failed to raise a triable issue of fact.
cited Cited as authority (rule) Jno-Baptiste v. Buckley
N.Y. App. Div. · 2011 · confidence medium
The physiatrist makes no attempt to explain the conflicting findings, and defendant is thus entitled to summary judgment on this basis (see Pou v E&S Wholesale Meats, Inc., 68 AD3d 446, 447 [2009]).
discussed Cited as authority (rule) Rubencamp v. Arrow Exterminating Co.
N.Y. App. Div. · 2010 · confidence medium
In opposition thereto, plaintiff did not present any objective assessment of her condition, based upon sworn and/or certified records, that was contemporaneous with the accident (see Pou v E&S Wholesale Meats, Inc., 68 AD3d 446, 447 [2009]; Lopez v Abdul-Wahab, 67 AD3d 598, 599 [2009] ).
discussed Cited as authority (rule) Nieves v. Castillo
N.Y. App. Div. · 2010 · confidence medium
The medical opinions submitted in support of plaintiffs supplemental showing, based on MRIs and examinations more than four years after the accident, were too remote to be probative (see Pou v E&S Wholesale Meats, Inc., 68 AD3d 446, 447 [2009]).
discussed Cited "see, e.g." Salman v. Rosario
N.Y. App. Div. · 2011 · signal: see also · confidence medium
The circumstances, i.e., plaintiff’s initial medical exam that was close in time to the accident, her intensive physical therapy, her young age and eventual surgery, make the four months between the accident and plaintiffs objective medical evidence sufficiently contemporaneous to withstand a motion for summary judgment (see Gonzalez v Vasquez, 301 AD2d 438 [2003] [examining physician’s affirmation correlating motorist’s neck and back pain two years after rear-end collision to quantified range of motion limitations found on physical examination and bulging and herniated discs described i…
Retrieving the full opinion text from the archive…
Carlos A. Pou
v.
E&S Wholesale Meats, Inc.
Appellate Division of the Supreme Court of the State of New York.
Dec 3, 2009.
68 A.D.3d 446
Cited by 11 opinions  |  Published

[*447] Defendants met their initial burden of demonstrating the absence of any permanent or significant physical limitation of plaintiffs lumbar or cervical spine by submitting the affirmed report of an expert who examined plaintiff and concluded, based upon objective tests conducted, that he had not suffered a permanent consequential limitation or a significant limitation (see Onishi v N & B Taxi, Inc., 51 AD3d 594, 595 [2008]). In opposition, plaintiff failed to raise a triable issue of fact.

Plaintiffs expert’s assertions of range-of-motion limitations during the period shortly after the accident were conclusory, and were contradicted by other records from plaintiffs therapy noting a full range of motion involving both the lumbar and cervical spine. Plaintiffs expert’s more recent findings, occurring some 4V2 years after the accident, while quantitative, are too remote in time to raise an inference that plaintiff’s purported present limitations were causally related to the accident (see Danvers v New York City Tr. Auth., 57 AD3d 252 [2008]). Nor has plaintiff explained the 4V2-year gap in treatment, following six months of therapy. Plaintiffs self-serving statements that he felt he had reached the maximum benefit and had learned to live with the pain are insufficient explanations for suspending treatment (see Thompson v Abbasi, 15 AD3d 95, 99 [2005]; Zoldas v Louise Cab Corp., 108 AD2d 378, 383 [1985]; cf. Toure v Avis Rent A Car Sys., 98 NY2d 345, 355 [2002]). He thus failed to raise any triable issue of fact as to his suffering of a serious injury causally connected to the accident.

Defendants also established prima facie that plaintiff did not suffer a 90/180-day injury, and plaintiff failed to raise a triable issue of fact, given his testimony that he was out of work for a “couple of days only” (see Gorden v Tibulcio, 50 AD3d 460, 463 [2008]; Guadalupe v Blondie Limo, Inc., 43 AD3d 669, 670 [2007]). Concur — Saxe, J.P., Friedman, Acosta, Renwick and Abdus-Salaam, JJ.