| Elshaarawy v U-Haul Co. of Miss. |
| 2010 NY Slip Op 03273 [72 AD3d 878] |
| April 20, 2010 |
| Appellate Division, Second Department |
| Sherif Elshaarawy, Respondent, v U-Haul Co. ofMississippi et al., Appellants, et al., Defendant. |
—[*1] Wittenstein & Associates, P.C., Brooklyn, N.Y. (Harlan Wittenstein of counsel), forrespondent.
In a consolidated action to recover damages for personal injuries, the defendants U-Haul Co.of Mississippi, Jeffrey Cranford, U-Haul Company of Arizona, and Amanda Cranford appealfrom (1) an order of the Supreme Court, Kings County (F. Rivera, J.), entered April 15, 2008,which denied their motion pursuant to CPLR 4404 (a) to set aside a jury verdict on the issue ofdamages and for a new trial on the issue of damages, and (2) a judgment of the same courtentered October 20, 2008, which upon the order entered April 15, 2008, and upon an order of thesame court (Johnson, J.), dated January 4, 2007, granting the plaintiff's motion for summaryjudgment on the issue of serious injury to his right knee, is in favor of the plaintiff and againstthem in the principal sum of $984,374.45, representing the net present value of the damagesawards plus interest from June 15, 2006, to October 20, 2008.
Ordered that the appeal from the order entered April 15, 2008, is dismissed; and it is further,
Ordered that the judgment is reversed, on the law, the plaintiff's motion for summaryjudgment on the issue of serious injury to his right knee is denied, the order dated January 4,2007, is modified accordingly, the order entered April 15, 2008, is vacated, and the matter isremitted to the Supreme Court, Kings County, for a new trial on the issue of damages; and it isfurther,
Ordered that one bill of costs is awarded to the appellants.
The appeal from the intermediate order entered April 15, 2008, must be dismissed becausethe right of direct appeal therefrom terminated with the entry of judgment in the action (seeMatter of Aho, 39 NY2d 241 [1976]). The issues raised on the appeal from that order arebrought up for review and have been considered on the appeal from the judgment (seeCPLR 5501 [a] [1]).[*2]
On July 8, 2004, the plaintiff parked his car near theintersection of 77th Street and 6th Avenue in Brooklyn, exited the vehicle, and opened the rearpassenger door to retrieve a tool box from the back seat. As the plaintiff was pulling the tool boxout of his car, a rented U-Haul van operated by the defendant Jeffrey Cranford made a right turnonto 77th Street, and struck the plaintiff's car in the rear. The impact pushed the plaintiff'svehicle forward, and the right rear tire of the car ran over the plaintiff's right foot. According tothe plaintiff, the sudden movement of his vehicle also caused him to lose his balance and fallback, hitting his head on the sidewalk and twisting his knee. The plaintiff alleges that, as a resultof the accident, he sustained injuries to his right knee, back, neck, and head. Approximately fourmonths later, the plaintiff underwent arthroscopic surgery on his right knee, which revealed thathe had sustained a tear of the lateral meniscus, and a tear of the anterior cruciate ligament. Asecond surgical procedure was performed on the plaintiff's right knee on December 14, 2004.
The plaintiff commenced one action against U-Haul Co. of Mississippi and Jeffrey Cranford,and a second action against, among others, U-Haul Company of Arizona and Amanda Cranford(hereinafter collectively the defendants). After the two actions were consolidated, the plaintiffmoved for summary judgment on the issue of liability, and the Supreme Court granted hismotion. The plaintiff subsequently moved for summary judgment on the issue of serious injuryto his right knee under the 90/180 day category of Insurance Law § 5102 (d). In an orderdated January 4, 2007, the Supreme Court granted the plaintiff's motion.
At the ensuing trial on the issue of damages, the plaintiff presented evidence regarding theinjuries to his right knee, as well as additional injuries to his head and the cervical and lumbarregions of his spine.
In accordance with the order dated January 4, 2007, the jury was instructed that "[t]he courthas already determined that plaintiff's knee injury was caused by this accident and caused animpairment, a medically determined impairment that fits this description. So, that issue is nolonger before you with regard to his knee, which means that no matter what, you will have togive an award of what you consider fair and reasonable compensation for the knee injury that thecourt has determined was causally linked to this accident." The jury subsequently returned averdict finding that the plaintiff sustained a medically determined injury or impairment of anonpermanent nature to his neck, back, and/or head that prevented him from performingsubstantially all of his usual and customary daily activities for not less than 90 days during the180 days immediately following the accident, and that the accident was a substantial factor incausing these injuries. The jury further found that the plaintiff had sustained a significantlimitation of use of a body function or system "as to the neck, back and/or knee," and that theaccident was a substantial factor in causing these injuries. The jury was not explicitly asked todetermine which one or more of these three body functions or systems were affected by asignificant limitation of use, but only to determine whether any one of them was so affected bysuch a significant limitation of use. The jury awarded the plaintiff the principal sums of $300,000for past pain and suffering, $500,000 for future pain and suffering, and $15,000 for lost earnings,but was not asked to allocate the awards among the plaintiff's various injured body parts,functions, or systems. The defendants thereafter moved pursuant to CPLR 4404 (a) to set asidethe verdict on the issue of damages and for a new trial, and the Supreme Court denied theirmotion. A judgment in favor of the plaintiff and against the defendants was subsequentlyentered, and the defendants appeal from the judgment.
On appeal, the defendants contend that the Supreme Court erred in granting the plaintiff'smotion for summary judgment on the issue of serious injury to his right knee under the 90/180day category of Insurance Law § 5102 (d). We agree. As the proponent of the summaryjudgment motion, the plaintiff had the burden of making a prima facie showing that he suffered aserious injury pursuant to Insurance Law § 5102 (d), and that his injury was causallyrelated to the accident (see Autiello vCummins, 66 AD3d 1072 [2009]; McHugh v Marfoglia, 65 AD3d 828, 829 [2009]; LaForte v Tiedemann, 41 AD3d1191, 1192 [2007]; Ellithorpe vMarion, 34 AD3d 1195 [2006]). The plaintiff satisfied this burden by submitting theaffirmation of his orthopedic surgeon and his own affidavit, which established that as a result ofthe accident he had sustained a "a medically determined injury" to his right knee whichprevented him from performing substantially all of his usual and customary daily [*3]activities for at least 90 of the first 180 days following the accident(Insurance Law § 5102 [d]; seeEllithorpe v Marion, 34 AD3d 1195, 1197 [2006]). However, in opposition, thedefendants raised a triable issue of fact as to whether the plaintiff's knee injuries were caused bythe subject accident by submitting the affirmation of their examining orthopedic surgeon, and theplaintiff's ambulance report and hospital emergency room records, which indicated that he madeno complaints of knee pain immediately after the accident, and that examination of his kneesrevealed no swelling. Although the ambulance report and hospital emergency room records wereuncertified, a defendant may rely upon unsworn medical reports and uncertified records of aninjured plaintiff's treating medical care providers in order to demonstrate the lack of seriousinjury (see Hernandez v Taub, 19AD3d 368 [2005]; Kearse v NewYork City Tr. Auth., 16 AD3d 45, 47 [2005]; Itkin v Devlin, 286 AD2d 477[2001]; Abrahamson v Premier Car Rental of Smithtown, 261 AD2d 562 [1999];Pagano v Kingsbury, 182 AD2d 268, 271 [1992]). Accordingly, the plaintiff's motion forsummary judgment on the issue of serious injury to his right knee under the 90/180 day categoryshould have been denied. Since the jury was instructed that its damages award must includecompensation for the plaintiff's knee injuries, which the Supreme Court determined to becausally linked to the accident, the jury did not expressly find that the plaintiff sustained asignificant limitation of use of his right knee, and the jury did not specifically allocate damagesto compensate the plaintiff for injuries to any particular parts, functions, or systems of his body,the judgment must be reversed, and a new trial on the issue of damages must be granted.
We further note that the Supreme Court erred in permitting the plaintiff's treating neurologistto testify as to the contents of a report interpreting magnetic resonance imaging (hereinafterMRI) films of the plaintiff's cervical spine, which was prepared by a radiologist who did nottestify at trial (see Wagman v Bradshaw, 292 AD2d 84 [2002]; see also Clevenger v Mitnick, 38AD3d 586, 587 [2007]; Jemmott vLazofsky, 5 AD3d 558, 560 [2004]; Beresford v Waheed, 302 AD2d 342, 343[2003]; DeLuca v Ding Ju Liu, 297 AD2d 307 [2002]). This testimony was improperlyadmitted because the MRI films were not in evidence, the plaintiff failed to elicit sufficient proofto establish that the MRI report interpreting the films was reliable, and the defendants had noopportunity to cross-examine the radiologist who prepared the report (see Wagman vBradshaw, 292 AD2d at 89-90).
In light of our determination, we need not address the defendants' remaining contentions.Rivera, J.P., Eng, Chambers and Hall, JJ., concur.