| Bennice v Randall |
| 2010 NY Slip Op 02253 [71 AD3d 1454] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| Donald R. Bennice, Respondent, v Marguerite M. Randall et al.,Appellants. |
—[*1] David M. Civilette, P.C., Dunkirk (Elena J. Ancona of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Chautauqua County (Joseph Gerace, J.H.O.),entered June 10, 2009 in a personal injury action. The order granted plaintiff's motion for adirected verdict.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the motion is denied and the verdict is reinstated.
Memorandum: Plaintiff commenced this action seeking damages for injuries he allegedlysustained when his vehicle was rear-ended by a vehicle operated by Marguerite M. Randall(defendant) and owned by defendant S.T. Kaczmierczak. Defendants conceded that the accidentresulted from defendant's negligence, and the matter proceeded to a summary jury trial on theissues of causation, serious injury and damages. At the close of proof, plaintiff moved for adirected verdict pursuant to CPLR 4401 on the issue of causation and with respect to thepermanent consequential limitation of use, significant limitation of use, and 90/180-daycategories of serious injury within the meaning of Insurance Law § 5102 (d). The JudicialHearing Officer (JHO) reserved his decision and, after the jury returned a verdict finding thatdefendant's negligence was not a substantial factor in causing plaintiff's injuries, the JHO grantedthe motion. We reverse.
At the outset, we agree with defendants that this appeal is properly before us. A summaryjury trial agreement " 'is an independent contract subject to the principles of contractinterpretation' " (Grochowski vFudella, 70 AD3d 1407, 1408 [2010]), and the agreement at issue provides that "[t]heright to move to set aside the verdict, or to appeal, is limited to instances in which the rights of aparty were significantly prejudiced by . . . an error of law that occurred during thecourse of the trial." We conclude that whether the JHO erred in directing a verdict in plaintiff'sfavor presents a question of law and thus the order is appealable pursuant to the summary jurytrial agreement (see generally CPLR 4401).
Turning to the merits, a directed verdict is "appropriate where the . . . courtfinds that, upon the evidence presented, there is no rational process by which the fact trier couldbase a finding in [*2]favor of the nonmoving party"(Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; see Cummings v Jiayan Gu, 42 AD3d 920, 921 [2007]). Inconsidering a motion for a directed verdict pursuant to CPLR 4401, "the . . . courtmust afford the party opposing the motion every inference which may properly be drawn fromthe facts presented, and the facts must be considered in a light most favorable to the nonmovant"(Szczerbiak, 90 NY2d at 556).
Here, there is a rational process by which the jury could have found that defendant'snegligence was not a substantial factor in causing plaintiff's alleged injuries. Plaintiff presentedthe testimony of several medical experts who examined him and concluded that the cervical andlumbar injuries at issue were causally related to the accident. Nevertheless, the lack of candordemonstrated by plaintiff when questioned on cross-examination about his preexisting injuries,together with his failure to advise some of those experts of his history of back pain, could haveled the jury to reject the opinions of those experts (see Salisbury v Christian, 68 AD3d 1664, 1665 [2009]). Further,the jury was entitled to credit the report of defendants' expert neurologist, who concluded thatplaintiff's complaints of pain were subjective and could not be linked to the accident. The furtherallegation of plaintiff that the accident caused him to sustain urinary problems was notconclusively supported by his treating urologist and, in any event, that allegation wascontradicted by defendants' expert. Thus, we agree with defendants that the JHO erred ingranting the motion (see generally Szczerbiak, 90 NY2d at 556). Present—Smith,J.P., Fahey, Carni, Lindley and Sconiers, JJ.