| Jourbine v Ma Yuk Fu |
| 2009 NY Slip Op 08586 [67 AD3d 865] |
| November 17, 2009 |
| Appellate Division, Second Department |
| Boris Jourbine, Respondent, v Ma Yuk Fu,Appellant. |
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In an action to recover damages for personal injuries, the defendant appeals, by permission,from an order of the Appellate Term for the Second, Eleventh, and Thirteenth Judicial Districts,dated July 30, 2008, which affirmed a judgment of the Civil Court, Queens County (Raffaele, J.),entered August 10, 2006, which, upon a jury verdict, and upon the denial of the defendant's oralapplication pursuant to CPLR 4401 for judgment as a matter of law for the plaintiff's failure toestablish a prima facie case, is in favor of the plaintiff and against the defendant in the principalsum of $25,000.
Ordered that the order is reversed, on the law, with costs, the judgment is vacated, thedefendant's oral application pursuant to CPLR 4401 for judgment as a matter of law for theplaintiff's failure to establish a prima facie case is granted, and the complaint is dismissed.
"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]; see Szczerbiakv Pilat, 90 NY2d 553, 556 [1997]). In considering such a motion, " 'the trial court mustafford the party opposing the motion every inference which may properly be drawn from thefacts presented, and the facts must be considered in a light most favorable to the nonmovant' "(Hand v Field, 15 AD3d 542,543 [2005], quoting Szczerbiak v Pilat, 90 NY2d at 556).
In the present case, there was no valid line of reasoning and permissible inferences whichcould possibly have led the jury to conclude that, as a result of the underlying motor vehicleaccident, the plaintiff sustained a permanent consequential limitation of use of a body organ ormember. To establish that he sustained an injury which falls within that category, the plaintiffwas required to show the duration of the alleged injury and the extent or degree of the limitationsassociated therewith (see Ferraro vRidge Car Serv., 49 AD3d 498 [2008]). At trial, the plaintiff failed to proffer competentmedical evidence of any range-of-motion limitations in his spine that were contemporaneouswith the subject accident (see Ferraro v Ridge Car Serv., 49 AD3d at 498; D'Onofrio v Floton, Inc., 45 AD3d525 [2007]).
Accordingly, the Civil Court should have granted the defendant's oral application pursuant[*2]to CPLR 4401 for judgment as a matter of law for theplaintiff's failure to establish a prima facie case.
In light of our determination, we need not consider the defendant's remaining contentions.Rivera, J.P., Florio, Miller and Hall, JJ., concur.