| Jones v Gooding |
| 2008 NY Slip Op 03594 [50 AD3d 968] |
| April 22, 2008 |
| Appellate Division, Second Department |
| Ronald Jones, Appellant, v Patrick N. Gooding,Respondent. |
—[*1] Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum] ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from stated portions of an order of the Supreme Court, Kings County (Rivera, J.), datedMay 19, 2006, which, inter alia, granted that branch of the defendant's renewed motion whichwas, in effect, pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly granted that branch of the defendant's renewed motion whichwas, in effect, pursuant to CPLR 4401 for judgment as a matter of law since "upon the evidencepresented, there [was] no rational process by which the fact trier could" find that the plaintiffsustained a serious injury (Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; see Crespo vKramer, 295 AD2d 467, 468 [2002]). Since the plaintiff missed only one day of work as aresult of the injuries he sustained in the subject motor vehicle accident, he failed to establish aprima facie case that he suffered a medically-determined injury which prevented him from"performing substantially all of the material acts which constitute[d] [his] usual and customarydaily activities" for at least 90 of the first 180 days following the accident (Insurance Law§ 5102 [d]; see Crespo v Kramer, 295 AD2d at 468). Fisher, J.P., Miller, Dillonand McCarthy, JJ., concur.