| Adler v Bayer |
| 2010 NY Slip Op 07300 [77 AD3d 692] |
| October 12, 2010 |
| Appellate Division, Second Department |
| David Adler et al., Respondents, v Pincus Bayer et al.,Appellants. |
—[*1] Annette G. Hasapidis, South Salem, N.Y., for respondents.
In an action to recover damages for personal injuries, etc., the defendants appeal from ajudgment of the Supreme Court, Rockland County (Nelson, J.), entered October 1, 2009, which,upon a jury verdict and upon, in effect, the denial of their motion pursuant to CPLR 4401 forjudgment as a matter of law, made at the close of the plaintiffs' case, is in favor of the plaintiffsand against them, in the principal sum of $30,000 for past pain and suffering and $300,000 forfuture pain and suffering.
Ordered that the judgment is reversed, on the law, with costs, the defendants' motionpursuant to CPLR 4401 for judgment as a matter of law is granted, and the complaint isdismissed.
This action arises from a one-car collision which occurred on the Palisades Parkway in NewJersey on November 6, 2005. Following the close of the plaintiffs' case, the defendants made amotion pursuant to CPLR 4401 for judgment as a matter of law on the ground that the injuredplaintiff David Adler (hereinafter the plaintiff) had failed to establish, prima facie, that hesustained a serious injury, within the statutory definition, as a result of the subject accident. TheSupreme Court, in effect, denied the motion. The jury thereafter determined that the plaintiff hadsuffered a permanent consequential limitation of the use of a body organ or member.
"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" (Hamilton v Rouse, 46 AD3d 514, 516 [2007]; Tapia v Dattco, Inc., 32 AD3d842, 844 [2006]). In considering such a motion, "the trial court must afford the partyopposing the motion every inference which may properly be drawn from the facts presented, andthe facts must be considered in a light most favorable to the nonmovant" (Szczerbiak vPilat, 90 NY2d 553, 556 [1997]).
Viewing the evidence in the light most favorable to the plaintiff, no rational jury [*2]could have found in his favor on the issue of whether he sustainedan injury under the "permanent consequential limitation category" of Insurance Law §5102 (d). The plaintiff failed to establish that he sustained an injury which falls within thatcategory. The plaintiff was required to show the duration of the alleged injury and the extent ordegree of the limitations associated therewith (see Ferraro v Ridge Car Serv., 49 AD3d 498 [2008]), which hefailed to do. Accordingly, the Supreme Court should have granted the defendants' motion forjudgment as a matter of law, made at the close of the plaintiffs' case. Rivera, J.P., Skelos,Chambers and Roman, JJ., concur.