| Rumford v Singh |
| 2015 NY Slip Op 06326 [130 AD3d 1002] |
| July 29, 2015 |
| Appellate Division, Second Department |
[*1]
| Debora Rumford, Respondent, v KamaljitSingh et al., Appellants. |
Philip J. Rizzuto, P.C., Carle Place, N.Y. (Kristen N. Reed of counsel), forappellants.
Law Offices of Harry C. Demiris, Jr., P.C., Westbury, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal from ajudgment of the Supreme Court, Queens County (Lane, J.), entered February 5, 2013,which, upon the denial of their motion pursuant to CPLR 4401 for judgment as a matterof law made at the close of the plaintiff's case at a jury trial on the issue of damages, anda jury verdict on the issue of damages finding that the plaintiff sustained a serious injuryunder the significant limitation of use category of Insurance Law § 5102(d), is in favor of the plaintiff and against them in the principal sum of $450,000.
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.
On the morning of June 27, 2008, the plaintiff was driving on Little Neck Parkwayin Queens when her vehicle was struck in the rear by a taxicab owned and operated bythe defendants. The plaintiff, who was wearing her seatbelt, alleges that the force of theimpact caused her head to hit the steering wheel. However, she did not loseconsciousness. The plaintiff was transported by ambulance to a hospital, where she wastreated and released the same day. Although the plaintiff claims that she complained of asevere headache at the hospital, she was given no treatment for it. The plaintiffsubsequently commenced this action to recover damages for personal injuries, alleging,inter alia, that she had suffered a traumatic brain injury as a result of the accident.
At a trial on the issue of damages, the plaintiff relied upon the testimony of apsychologist who was board-certified in the field of neuropsychology to establish thatshe had sustained a serious injury. The psychologist, who first examined the plaintiffmore than eight months after the accident, performed a range of tests that evaluatedifferent aspects of cognitive functioning, including memory and concentration. Basedupon the "positive" results of these tests, and his interview with the plaintiff, thepsychologist concluded that the plaintiff had sustained a concussive brain injury in theaccident. The psychologist further testified that his conclusion that the plaintiff'sconcussive brain injury was causally related to the accident was based on her statementsindicating that she had no complaints of cognitive difficulties prior to the accident, and[*2]her account of hitting her head on the steeringwheel.
The defendants moved pursuant to CPLR 4401 for judgment as a matter of law at theclose of the plaintiff's case, arguing that the psychologist's testimony was legallyinsufficient to establish that the plaintiff sustained a serious injury. The Supreme Courtdenied the motion. The jury returned a verdict finding that the plaintiff had suffered aserious injury under the significant limitation of use category of Insurance Law§ 5102 (d). A judgment was thereafter entered in favor of the plaintiff andagainst the defendants in the principal sum of $450,000. The defendants appeal.
The Supreme Court erred in denying the defendants' motion pursuant to CPLR 4401for judgment as a matter of law made at the close of the plaintiff's case. "A motion forjudgment as a matter of law pursuant to CPLR 4401 or 4404 may be granted only whenthe 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 rationalprocess by which the jury could find in favor of the nonmoving party" (Tapia v Dattco, Inc., 32 AD3d842, 844 [2006]; see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; Messina v Staten Is. Univ.Hosp., 121 AD3d 867 [2014]; DiCariano v County of Rockland, 111 AD3d 879, 880[2013]). In considering such a motion, "the trial court must afford the party opposing themotion every inference which may properly be drawn from the facts presented, and thefacts must be considered in a light most favorable to the nonmovant" (Szczerbiak vPilat, 90 NY2d at 556; seeMessina v Staten Is. Univ. Hosp., 121 AD3d 867 [2014]; DiCariano vCounty of Rockland, 111 AD3d at 880).
Applying this standard here, we conclude that there was no valid line of reasoningand permissible inferences which could have led the jury to conclude that the plaintiffsustained a serious injury under the significant limitation of use category of InsuranceLaw § 5102 (d). Although the plaintiff's expert psychologist testified, basedupon the results of certain tests, that the plaintiff was suffering from deficits in cognitivefunctioning, he failed to identify any objective medical evidence to support hisconclusion that the plaintiff had suffered a concussive brain injury (see Feyler v Ketelsen, 72AD3d 738 [2010]; Guzmanv 4030 Bronx Blvd. Assoc. L.L.C., 54 AD3d 42 [2008]; cf. Flanders v National GrangeMut. Ins. Co., 124 AD3d 1035 [2015]; Viscusi v Ostrowski, 25 Misc 3d 1213[A], 2007 NY SlipOp 52652[U] [Sup Ct, Schenectady County 2007], affd for reasons stated 53AD3d 965 [2008]; see alsoKranis v Biederbeck, 83 AD3d 903 [2011]; Taranto v McCaffrey, 40 AD3d 626 [2007]). Moreover, hisfinding that her neurological condition was causally related to the accident wasspeculative (see Smith vReeves, 96 AD3d 1550 [2012]; Clark v Basco, 83 AD3d 1136 [2011]).
Accordingly, the Supreme Court should have granted the defendants' motionpursuant to CPLR 4401 for judgment as a matter of law and dismissed the complaint.Eng, P.J., Leventhal, Hall and Roman, JJ., concur.