| Talcott v Zurenda |
| 2008 NY Slip Op 01663 [48 AD3d 989] |
| February 28, 2008 |
| Appellate Division, Third Department |
| Joseph W. Talcott et al., Respondents, v Anthony P. Zurenda et al.,Appellants. |
—[*1] Scott C. Gottlieb, Binghamton, for respondents.
Cardona, P.J. Appeal from a judgment of the Supreme Court (Relihan, Jr., J.), enteredNovember 27, 2006 in Broome County, upon a decision of the court in favor of plaintiffs.
Plaintiff Joseph W. Talcott (hereinafter plaintiff) and his wife, derivatively, commenced thisaction alleging that plaintiff sustained a serious injury within the meaning of Insurance Law§ 5102 (d) when the vehicle he was operating was hit multiple times from behind by avehicle operated by defendant Anthony P. Zurenda and owned by defendant TranscontinentalRefrigerated Lines, Inc. Liability was conceded and, following a nonjury trial, Supreme Court, inan October 2006 decision, found in favor of plaintiffs, concluding that "plaintiff sustained aserious injury within at least one (the 90/180 category) definition of that term in the InsuranceLaw" and awarded plaintiffs $324,500 plus interest. Defendants appeal.[FN*]
Contrary to defendants' contention, we find no reason to disturb Supreme Court's finding thatplaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d). [*2]The 90/180-day category of serious injury is defined by an inabilityof the plaintiff to perform "substantially all of the material acts which constitute such person'susual and customary daily activities" for not less than 90 out of the 180 days immediatelyfollowing the accident (Insurance Law § 5102 [d]). In order to prevail under this category,plaintiffs were required to present objective medical evidence of an injury or impairment of anonpermanent nature which would have caused the alleged limitations on plaintiff's dailyactivities (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 357 [2002]; Badger vSchinnerer, 301 AD2d 853, 854 [2003]; Sellitto v Casey, 268 AD2d 753, 755[2000]). Furthermore, plaintiffs were also required to establish that plaintiff's usual activitieswere curtailed "to a great extent rather than some slight curtailment" (Licari v Elliott, 57NY2d 230, 236 [1982]).
Here, plaintiffs presented the unrefuted testimony of Kamlesh Desai, the orthopedic surgeonthat plaintiff treated with since one week after the accident and who diagnosed him with"[c]hronic cervical, thoracic and lumbar syndrome," which was secondary to the motor vehicleaccident. Desai testified that the repeated range of motion tests which he qualitatively measuredover a two-year period demonstrated a marked restriction of flexion, extension and rotationcompared with normal results. He stated that this was consistent not only with plaintiff'ssubjective complaints of pain, but also with the diagnosis of soft tissue injuries sustained in theaccident and his continued objective observation of plaintiff over a long period of time. Inaddition, Desai indicated that, during the course of plaintiff's treatment, muscle palpations weredetected and reflex tests of the upper extremities evidenced diminished reflexes.
With respect to plaintiff's asymptomatic degenerative condition, Desai opined that the traumaof the motor vehicle accident aggravated this condition and it was possible that plaintiff couldhave remained asymptomatic throughout his life but for the accident. To the extent thatdefendants' argue that plaintiffs failed to plead the aggravation of a preexisting condition, wenote that this issue was raised by the parties in connection with defendants' motion for summaryjudgment and the case was tried on that theory. Accordingly, any variance between the pleadingsand the proofs at trial are excused inasmuch as defendants cannot be said to have been misled orprejudiced by such evidence (seeAnderson v Dainack, 39 AD3d 1065, 1068 [2007]; Hummel v Vicaretti, 152AD2d 779, 780 [1989], lv dismissed 75 NY2d 809 [1990]).
Turning to the curtailment of plaintiff's usual activities, since the date of the accident plaintiffhas been unable to return to his business of drilling wells, plumbing and installing heaters and airconditioners. The testimony established that the repetitive motions of pulling, twisting and liftingand other physical labor required by such employment increased plaintiff's pain and musclespasms. In addition, plaintiff testified regarding the effect those restrictions had on preventinghim from engaging in daily chores and activities that he regularly performed prior to the accident.Upon our review of the evidence, and giving due deference to Supreme Court's credibilityassessments as the trier of fact (seePedersen v Royce, 38 AD3d 1090, 1091-1092 [2007]), we conclude that the proofsufficiently supports the finding that plaintiff sustained a serious injury under the 90/180-daycategory of the Insurance Law.
We do find, however, some merit to defendants' challenge to the total loss of incomeawarded. In relying on defendants' calculations, Supreme Court used the gross incomeattributable to plaintiff—approximately $310,000—without deducting any offset forthe salary imputed to his wife's employment position with the business. In that regard, defendantsprovided the court with such a calculation totaling $180,942.92, which, upon our review, is theappropriate amount attributable to plaintiff's total gross income. In reducing that amount by 25%in [*3]accordance with the court's findings, we conclude that thenet economic loss to plaintiff, in excess of basic economic loss, is $135,707.19. Contrary todefendants' contention on appeal, however, this amount is not subject to any further reduction topresent value or offsets inasmuch as it does not exceed $250,000 (see CPLR 5041 [b],[e]; Sternfeld v Forcier, 248 AD2d 14, 18 [1998], appeal dismissed 92 NY2d1045 [1999]).
We have reviewed defendants' remaining contentions, including his challenge to a nonjurytrial, and find them to be without merit.
Carpinello, Lahtinen, Kane and Kavanagh, JJ., concur. Ordered that the judgment ismodified, on the facts, without costs, by reducing the amount awarded to plaintiff Joseph W.Talcott for net economic loss, in excess of basic economic loss, from $232,500 to $135,707.19,and, as so modified, affirmed.
Footnote *: Contrary to plaintiffs'contention, the timely appeal from the final judgment brings up for review the October 2006decision and order (see Matter of Specht, 265 AD2d 919 [1999]).