| Nunez v Motor Veh. Acc. Indem. Corp. |
| 2012 NY Slip Op 04981 [96 AD3d 917] |
| June 20, 2012 |
| Appellate Division, Second Department |
| Ana Nunez, Respondent, v Motor Vehicle AccidentIndemnification Corporation, Appellant. |
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Burns & Harris, New York, N.Y. (Blake Goldfarb, Judith F. Stempler, and Andrea Borden ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from a judgmentof the Supreme Court, Kings County (Ruchelsman, J.), entered March 11, 2011, which, upon, ineffect, the denial of its motion pursuant to CPLR 4401 for judgment as a matter of law made atthe close of the plaintiff's case, and upon a jury verdict finding that the plaintiff sustained aserious injury under the 90/180 day category of Insurance Law § 5102 (d), is in favor of theplaintiff and against it in the principal sum of $33,360, representing awards of $23,360 for pastpain and suffering and $10,000 for future pain and suffering.
Ordered that the judgment is reversed, on the law, with costs, the defendant's motionpursuant to CPLR 4401 for judgment as a matter of law is granted, and the complaint isdismissed.
The plaintiff commenced this action alleging that she was struck by an unidentified motorvehicle while crossing an intersection and, as a result, sustained serious injuries as defined byInsurance Law § 5102 (d) under the categories of "significant limitation of use of a bodyfunction or system" and "a medically determined injury or impairment of a non-permanent naturewhich prevents the injured person from performing substantially all of the material acts whichconstitute such person's usual and customary daily activities for not less than ninety days duringthe one hundred eighty days immediately following the occurrence of the injury or impairment."
At the close of the plaintiff's case, the defendant made a motion "to move for threshold." TheSupreme Court reserved decision. After the defense presented its case, defense counsel addressedthe outstanding oral motion, stating "I would like to renew my motion to dismiss based onthreshold." The Supreme Court, in effect, denied that motion. Thereafter, the jury returned averdict finding that the plaintiff did not sustain an injury under the significant limitation of usecategory, but did sustain an injury under the 90/180-day category.
Initially, the defendant's motion for judgment as a matter of law "based on threshold"satisfied the specificity requirement of CPLR 4401 in that, under the circumstances, it called tothe Supreme Court's attention the defendant's contention that the plaintiff failed to offer sufficientproof to establish the threshold of a serious injury pursuant to Insurance Law § 5102 (d)(see CPLR 4401). [*2]A review of the record makes clearthat the motion was not simply a "general objection," which does not preserve an issue forappellate review (cf. Hulsen v Morrison, 206 AD2d 459 [1994]; Montour v UrisBldrs., 42 AD2d 788, 789 [1973]).
"A trial court's grant of a CPLR 4401 motion for judgment as a matter of law is appropriatewhere the trial court finds that, upon the evidence presented, there is no rational process by whichthe fact trier could base a finding in favor of the nonmoving party" (Szczerbiak v Pilat,90 NY2d 553, 556 [1997]; see Hamiltonv Rouse, 46 AD3d 514, 516 [2007]; Tapia v Dattco, Inc., 32 AD3d 842, 844 [2006]). In consideringsuch a motion, "the trial court must afford the party opposing the motion every inference whichmay properly be drawn from the facts presented, and the facts must be considered in a light mostfavorable to the nonmovant" (Szczerbiak v Pilat, 90 NY2d at 556).
Here, viewing the evidence in the light most favorable to the plaintiff, there is no rationalprocess by which the jury could have found in her favor on the issue of whether she sustained aninjury under the 90/180-day category and, thus, whether she sustained a serious injury within themeaning of Insurance Law § 5102 (d) (see Lanzarone v Goldman, 80 AD3d 667, 669 [2011]; Hamiltonv Rouse, 46 AD3d at 516-517; Ruocco v Brody, 16 AD3d 571, 572 [2005]). The plaintiff'smedical expert testified as to his examination of the plaintiff, but failed to adequately testifyconcerning any alleged limitations of the plaintiff's ability to function during the statutory period(see Lanzarone v Goldman, 80 AD3d at 669; Ruocco v Brody, 16 AD3d at 572;Sainte-Aime v Ho, 274 AD2d 569, 570 [2000]). As the plaintiff did not submit anycompetent medical evidence to support her claim that the injuries she allegedly sustained as aresult of the subject accident rendered her unable to perform substantially all of her dailyactivities for not less than 90 of the 180 days immediately thereafter, the Supreme Court shouldhave granted the defendant's motion pursuant to CPLR 4401 for judgment as a matter of law,made at the close of the plaintiff's case (see Gavin v Sati, 29 AD3d 734, 735 [2006]; Sainte-Aime vHo, 274 AD2d at 570). Skelos, J.P., Florio, Roman and Miller, JJ., concur.