| DiCariano v County of Rockland |
| 2013 NY Slip Op 07931 [111 AD3d 879] |
| November 27, 2013 |
| Appellate Division, Second Department |
| David DiCariano, Respondent, v County ofRockland et al., Appellants. |
—[*1] Sacks & Sacks, LLP, New York, N.Y. (Scott N. Singer of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal, aslimited by their brief, from so much of an order of the Supreme Court, Rockland County(Walsh II, J.), entered December 23, 2011, as denied that branch of their motion pursuantto CPLR 4404 (a) which was to set aside a jury verdict in favor of the plaintiff andagainst them on the issue of damages finding that the plaintiff sustained a serious injurywithin the meaning of Insurance Law § 5102 (d) as a result of the subject accidentand awarding the plaintiff damages, and for judgment as a matter of law.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and that branch of the defendants' motion pursuant to CPLR 4404 (a) which was to setaside the jury verdict in favor of the plaintiff and against the defendants on the issue ofdamages finding that the plaintiff sustained a serious injury within the meaning ofInsurance Law § 5102 (d) as a result of the subject accident and awarding theplaintiff damages, and for judgment as a matter of law, is granted.
On September 4, 2008, the plaintiff was walking across a street when he was"sideswiped" by a slow-moving bus driven by the defendant Rodney M. Wright, leasedby the defendant Hudson Transit Lines, and owned by the defendant County ofRockland. The plaintiff commenced this personal injury action against the defendants,alleging, inter alia, that, as a result of the subject accident, he sustained a serious injury tohis right knee under the significant limitation of use and permanent consequentiallimitation of use categories of Insurance Law § 5102 (d). Following a jury verdictin the plaintiff's favor on the issue of damages, among other things, finding that theplaintiff sustained a serious injury under each of these two categories, the defendantsmoved pursuant to CPLR 4404 (a), inter alia, to set aside the verdict and for judgment asa matter of law on the ground that the plaintiff failed to establish a prima facie case thathe sustained a serious injury under either category. The trial court denied the motion.
"A motion for judgment as a matter of law pursuant to CPLR . . . 4404may be granted only when the trial court determines that, upon the evidence presented,there is no valid line of reasoning and permissible inferences which could possibly leadrational persons to the conclusion reached by the jury upon the evidence presented attrial, and no rational process by which the jury could find in favor of the nonmovingparty" (Tapia v Dattco, Inc.,32 AD3d 842, 844 [2006]; see CPLR 4404). In considering the motion, theopposing party's evidence must be accepted as true, and that [*2]party must be accorded every favorable inference that canreasonably be drawn therefrom (see Tapia v Dattco, Inc., 32 AD3d at 844).
We agree with the defendants' contention that there was no valid line of reasoningand permissible inferences which, upon the evidence presented at trial, could possiblylead rational persons to the conclusion reached by the jury that the plaintiff sustained aserious injury within the meaning of Insurance Law § 5102 (d), and no rationalprocess by which the jury could find in favor of the plaintiff on the issue of whether hesustained a serious injury within the meaning of Insurance Law § 5102 (d). As forthe significant limitation of use category, the plaintiff failed to establish that, after thesubject accident, the limitation of the use of his right knee was both significant in degreeand "existed for a sufficient period of time to rise to the level of 'significance' " (Lively v Fernandez, 85 AD3d981, 982 [2011]). Indeed, to the extent the plaintiff established that the limitation ofuse of his right knee was significant in degree, the periods of limitation were nonetheless"fleeting in duration" (Partlow v Meehan, 155 AD2d 647, 648 [1989]). As forthe permanent consequential limitation of use category, the plaintiff failed to establishthat, during a "recent" examination, there was a limitation of motion to his knee that wasof consequence (Lively v Fernandez, 85 AD3d at 982; see Bacon v Bostany, 104AD3d 625, 628 [2013]; Pecora v Lawrence, 41 AD3d 1212, 1214 [2007]).
Accordingly, the trial court should have granted that branch of the defendants'motion which was pursuant to CPLR 4404 (a) to set aside the jury's verdict on the issueof damages finding that the plaintiff sustained a serious injury and awarding the plaintiffdamages, and for judgment as a matter of law.
In light of our determination, we need not address the defendants' remainingcontentions. Rivera, J.P., Angiolillo, Hall and Cohen, JJ., concur.