| Hamilton v Rouse |
| 2007 NY Slip Op 09558 [46 AD3d 514] |
| December 4, 2007 |
| Appellate Division, Second Department |
| Mark Hamilton, Respondent-Appellant, v Ernestine Rouse,Appellant-Respondent. |
—[*1] Harmon, Linder & Rogowsky (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [BrianJ. Isaac] of counsel), for respondent-appellant.
In an action, inter alia, to recover damages for personal injuries, the defendant appeals (1), aslimited by her brief, from so much of an order of the Supreme Court, Kings County(Ruchelsman, J.), dated September 19, 2006, as denied that branch of her motion which was, ineffect, pursuant to CPLR 4404 (a) to set aside a jury verdict in favor of the plaintiff and againsther on the issue of damages, awarding the plaintiff the sums of $46,500 for past pain andsuffering and $150,000 for future pain and suffering and for judgment as a matter of law or, inthe alternative, to set aside the verdict on the issue of damages as against the weight of theevidence and for a new trial on that issue, and granted that branch of her motion which was to setaside the award of damages as excessive, only to the extent of granting a new trial on that issueunless the parties executed and filed a written stipulation with the Clerk of the Supreme Court,Kings County, reducing the award for past pain and suffering from the sum of $46,500 to thesum of $30,000, and the award for future pain and suffering from the sum of $150,000 to the sumof $100,000, (2) from an order of the same court dated November 21, 2006, which granted theplaintiff's motion, in effect, to resettle so much of the order dated September 19, 2006, asrequired both of the parties to execute the stipulation and, upon resettlement, vacated thatprovision and substituted therefor a provision requiring the stipulation to be executed by theplaintiff only, and (3) from a judgment of the same court entered February 6, 2007, which, uponthe jury verdict, upon the denial of her oral application pursuant to CPLR 4401 [*2]for judgment as a matter of law made at the close of the plaintiff'scase, upon the orders dated September 19, 2006, and November 21, 2006, respectively, and uponthe plaintiff's stipulation entered December 14, 2006, is in favor of the plaintiff and against her inthe principal sums of $30,000 for past pain and suffering and $100,000 for future pain andsuffering, and the plaintiff cross-appeals from the order dated September 19, 2006.
Ordered that the appeals from the orders and the cross appeal from the order dated September19, 2006 are dismissed; and it is further,
Ordered that the judgment is reversed, on the law, with costs, the orders dated September 19,2006 and November 21, 2006, respectively, are vacated, the defendant's oral application pursuantto CPLR 4401 for judgment as a matter of law is granted, and the complaint is dismissed.
The appeals by the defendant from the intermediate orders and the cross appeal by theplaintiff from the intermediate order dated September 19, 2006 must be dismissed because theright of direct appeal therefrom terminated with the entry of judgment in the action (seeMatter of Aho, 39 NY2d 241, 248 [1976]). Although the issues raised on the appeals and thecross appeal from the orders are brought up for review and ordinarily would be considered on theappeal from the judgment (see CPLR 5501 [a] [1]), the issues raised have been renderedacademic in light of our determination on the appeal from the judgment, and therefore need notbe reviewed.
This action arises from a two-car collision which occurred in Brooklyn on April 16, 2002. Inhis verified complaint, the plaintiff alleged that he sustained personal injuries which met thestatutory definition of "serious injury" as set forth in Insurance Law § 5102 (d) and, in hisverified bill of particulars, he alleged that he sustained, inter alia, a herniated disc in the cervicalspine and a bulging disc in the lumbosacral spine. Following the close of the plaintiff's case, thedefendant made an oral application pursuant to CPLR 4401 for judgment as a matter of law onthe ground that the plaintiff had failed to establish, prima facie, that he sustained a serious injury.The Supreme Court, in effect, ultimately denied the oral application. The jury thereafterdetermined that the plaintiff had suffered a permanent consequential limitation of the use of abody organ or member, and had also sustained a medically-determined injury which preventedhim from performing substantially all of his daily activities for 90 of the first 180 daysimmediately following the accident. The Supreme Court denied the defendant's subsequentmotion pursuant to CPLR 4404 (a) to set aside the verdict, inter alia, on the ground that theplaintiff failed to establish, prima facie, that his injuries qualified as "serious" under theforegoing two statutory categories.
"A motion for judgment as a matter of law pursuant to CPLR 4401 or 4404 may be grantedonly when the trial court determines that, upon the evidence presented, there is no valid line ofreasoning and permissible inferences which could possibly lead rational persons to theconclusion reached by the jury upon the evidence presented at trial, and no rational process bywhich the jury could find in favor of the nonmoving party" (Tapia v Dattco, Inc., 32 AD3d 842, 844 [2006]). In consideringsuch a motion, "the trial court must afford the party opposing the motion every inference whichmay properly be drawn from the facts presented, and the facts must be considered in a light mostfavorable to the nonmovant" (Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]).
Viewing the evidence in the light most favorable to the plaintiff, no rational jury could havefound in his favor on the issue of whether he sustained an injury under the "90/180 day" [*3]or "permanent consequential limitation" categories, and thuswhether he sustained a serious injury within the meaning of Insurance Law § 5102 (d). Theplaintiff testified at trial that he missed only one month of work, that he then returned to work ona part-time basis, and that, after another month, he had resumed working on a full-time basis (see Rodriguez v Virga, 24 AD3d650, 650-651 [2005]). The plaintiff further acknowledged that he was never directed by histreating physician to refrain from working following the accident (see Pierre v Nanton,279 AD2d 621, 622 [2001]).
Moreover, "[a]lthough a bulging or herniated disc may constitute a serious injury within themeaning of Insurance Law § 5102 (d), a plaintiff must provide objective evidence of theextent or degree of the alleged physical limitations resulting from the disc injury and its duration"(Monette v Keller, 281 AD2d 523, 523-524 [2001]; see Diaz v Turner, 306 AD2d241, 242 [2003]). In this case, the testimony adduced at trial from the plaintiff's medical expertDr. Aric Hausknecht failed to satisfy this requirement. Indeed, in addition to his failure to specifythe objective means he used to ascertain the plaintiff's cervical and lumbosacral range of motion,Hausknecht acknowledged that "[r]ange of motion is not his problem. He has not lost a lot ofmotion in his neck or back." Consequently, the trial court should have granted the defendant'soral application pursuant to CPLR 4401 for judgment as a matter of law made at the close of theplaintiff's case.
In light of our determination, we need not address the parties' remaining contentions. Crane,J.P., Rivera, Angiolillo and Dickerson, JJ., concur.