| Bacon v Bostany |
| 2013 NY Slip Op 01365 [104 AD3d 625] |
| March 6, 2013 |
| Appellate Division, Second Department |
| Charles Bacon, Respondent, v John P. Bostany,Appellant. |
—[*1] Weiser & Associates, LLP, New York, N.Y. (Martin J. Weiser and Edward Spark ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from (1)an order of the Supreme Court, Kings County (Kramer, J.), dated June 23, 2011, which,inter alia, denied that branch of his motion which was pursuant to CPLR 4404 (a) to setaside a jury verdict in favor of the plaintiff and against him on the issue of damagesfinding that the plaintiff did sustain a serious injury within the meaning of Insurance Law§ 5102 (d) as a result of the subject accident and for judgment as a matter of law,and (2) a judgment of the same court dated August 11, 2011, which, upon an order of thesame court (Solomon, J.) dated February 5, 2009, granting the plaintiff's motion forsummary judgment on the issue of liability, upon the order dated June 23, 2011, andupon the jury verdict, is in favor of the plaintiff and against him in the principal sum of$450,000.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed, on the law, that branch of the defendant'smotion which was pursuant to CPLR 4404 (a) to set aside the jury verdict on the issue ofdamages and for judgment as a matter of law is granted, the complaint is dismissed, andthe order dated June 23, 2011, is modified accordingly; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The appeal from the intermediate order must be dismissed because the right of directappeal therefrom terminated with the entry of judgment in the action (see Matter ofAho, 39 NY2d 241 [1976]). The issues raised on the appeal from the order arebrought up for review and have been considered on the appeal from the judgment(see CPLR 5501 [a] [1]).
The plaintiff allegedly was injured when the vehicle he was driving was struck in therear by a vehicle owned and operated by the defendant. The plaintiff commenced thisaction against the defendant to recover damages allegedly sustained as a result of thedefendant's negligence.
After the Supreme Court granted the plaintiff's motion for summary judgment on the[*2]issue of liability, a trial was held on the issue ofdamages. The plaintiff testified that he sustained injuries to his neck and back as a resultof the accident, and that he sought treatment with an orthopedic surgeon and a physicaltherapist. After the trial, the jury returned a verdict finding that, as a result of theaccident, the plaintiff sustained a serious injury due to (1) a significant limitation of useof a body function or system, (2) a permanent, consequential limitation of use of a bodyorgan or member, and (3) a medically determined injury or impairment of anon-permanent nature which prevented him from performing substantially all of thematerial acts constituting his usual and customary daily activities for not less than 90days during the 180 days immediately following the accident. The defendant moved,inter alia, pursuant to CPLR 4404 (a) to set aside the jury verdict and for judgment as amatter of law, arguing that the plaintiff did not sustain a serious injury within themeaning of Insurance Law § 5102 (d) as a result of the subject accident. TheSupreme Court, inter alia, denied that branch of the motion.
"A motion pursuant to CPLR 4404 (a) to set aside a jury verdict and for judgment asa matter of law will be granted where there is no valid line of reasoning and permissibleinferences which could possibly lead rational persons to the conclusions reached by thejury on the basis of the evidence presented at trial" (Linson v City of New York, 98 AD3d 1002, 1002-1003[2012], lv denied 20 NY3d 855 [2013]; see Cohen v Hallmark Cards, 45NY2d 493, 499 [1978]; Courtney v Port Auth. of N.Y. & N.J., 45 AD3d 801, 802[2007]). When presented with such a motion, "the trial court must afford the partyopposing the motion every inference which may properly be drawn from the factspresented, and the facts must be considered in a light most favorable to the nonmovant"(Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; see Flynn v Elrac, Inc., 98AD3d 938, 939 [2012]).
Here, based on the evidence presented at the trial, there was no valid line ofreasoning and permissible inferences which could possibly have led the jury to rationallyconclude that the plaintiff sustained a serious injury within the meaning of InsuranceLaw § 5102 (d) as a result of the subject accident. The evidence did not establishthat the plaintiff's injuries satisfied the "significant limitation of use" or "permanentconsequential limitation" categories with respect to finding a serious injury underInsurance Law § 5102 (d) (see Kilakos v Mascera, 53 AD3d 527, 528 [2008]; Hamilton v Rouse, 46 AD3d514 [2007]). "Although a bulging or herniated disc may constitute a serious injurywithin the meaning of Insurance Law § 5102 (d), a plaintiff must provide objectiveevidence of the extent or degree of the alleged physical limitations resulting from the discinjury and its duration" (Diaz v Turner, 306 AD2d 241, 242 [2003] [internalquotation marks omitted]; seeRivera v Bushwick Ridgewood Props., Inc., 63 AD3d 712, 713 [2009]; Jules v Calderon, 62 AD3d958, 959 [2009]; Casco vCocchiola, 62 AD3d 640, 641 [2009]). The testimony adduced from theplaintiff's doctor and physical therapist did not fulfill the objective-evidence requirementsince those witnesses did not provide any explanation as to what objective tests wereused to make their determinations that the plaintiff suffered from a limitation in the rangeof motion of his spine (seeCandia v Omonia Cab Corp., 6 AD3d 641, 643 [2004]; see e.g. Catalano v Kopmann,73 AD3d 963 [2010]; Nilesv Lam Pakie Ho, 61 AD3d 657, 659 [2009]). In addition, the plaintiff failed tofulfill the permanency requirement of the permanent consequential limitation category, asthe medical evidence he submitted at trial was not based on a recent examination (see Estrella v GEICO Ins. Co.,102 AD3d 730 [2013]; Nesci v Romanelli, 74 AD3d 765, 766 [2010]).
Moreover, the plaintiff testified that, after the subject accident, he only missed fivedays of work before returning full time, and was not confined to his home or bed for anyperiod following the accident. Further, he did not proffer any evidence that he wasunable to perform substantially all of his daily activities for 90 days during the 180-dayperiod immediately following the accident. Consequently, the plaintiff also failed toestablish that he sustained a serious injury under the "90/180" category (see Nunez v Motor Veh. Acc.Indem. Corp., 96 AD3d 917, 919 [2012]; Parise v New York City Tr. Auth., 94 AD3d 839, 840[2012]; Lanzarone vGoldman, 80 AD3d 667, 669 [2011]; Nesci v Romanelli, 74 AD3d at766).
Accordingly, the Supreme Court should have granted that branch of the defendant'smotion which was pursuant to CPLR 4404 (a) to set aside the jury verdict and forjudgment as a matter of law.
In light of our determination, we need not address the defendant's remaining [*3]contentions. Mastro, J.P., Lott, Austin and Sgroi, JJ.,concur.