Benak v Ahmed

[*1] Benak v Ahmed 2009 NY Slip Op 50615(U) [23 Misc 3d 1107(A)] Decided on March 6, 2009 Civil Court Of The City Of New York, Kings County Edwards, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 6, 2009
Civil Court of the City of New York, Kings County

Lara Benak, Plaintiff,

against

Ijaz Ahmed, Defendant.



1687/02

Genine D. Edwards, J.

After a liability verdict in favor of the plaintiff, a damages trial ensued before a jury on December 3rd and 4th of 2008. Plaintiff claimed that as a result of a motor vehicle accident, dated June 25, 1999, she sustained serious injuries to her neck, back and right knee. The jury returned a 5/6 verdict in favor of the plaintiff. They found that the plaintiff sustained a significant limitation of use of a body, function or system and a non-permanent, medically determined injury for 90 days of the first 180 days after the accident, pursuant to Insurance Law §5102. Plaintiff was awarded a total of $150,000.00 for past and future pain and suffering.

The parties submitted timely post-trial memorandum regarding defendant's motions for a directed verdict and judgment notwithstanding the verdict based upon a gap in treatment, lack of range of motion limitations and failure to prove a non-permanent, medically determined injury. Plaintiff opposed those motions, averring that the evidence presented issues of fact that warranted the jury's determination.

It is axiomatic that the plaintiff must proffer contemporaneous and objective medical evidence to support her claims of serious injuries. See Toure v. Avis Rent A Car Sys., 98 NY2d 345, 746 NYS2d 865 (2002); Ortiz v. Ash Leasing, Inc., 21 Misc 3d 1124(A), 2008 NY Slip Op. 52170(U) (Sup. Ct. Bronx County 2008). The defendant focuses on plaintiff's failure to prove range of motion deficiencies as discussed in Toure. However, defendant fails to read further in Toure, which alternatively holds that a qualitative assessment indicating objective findings and a comparison to normal activities will also substantiate a serious injury. Toure, supra ; Scudera v. Mahbubar, 39 AD3d 620, 833 NYS2d 239 (2d Dept. 2007); Acholonu v. Archer, 21 Misc 3d 1136(A), 2008 NY Slip Op. 52395(U) (Sup. Ct. Kings County 2008); Ortiz, supra ; Jon Wok Han v. Arkwright, 20 Misc 3d 1116(A), 867 NYS2d 17 (Sup. Ct. Nassau County 2008).

The plaintiff's medical records, including the operative report and MRI films as well as Dr. Robert S. Goldstein's testimony that plaintiff's activities have been and will continue to be limited due to the injury she sustained, constitute objective medical evidence of a serious injury in direct contradiction to the defendant's arguments regarding lack of a "significant limitation" and a non-permanent, medically determined injury. Squires v. Mumphery, 36 AD3d 607, 828 NYS2d 449 (2d Dept. 2007) (a torn meniscus amounts to an issue of fact as to whether the plaintiff sustained a serious injury); Pollas v. Jackson, 2 AD3d 700, 769 NYS2d 796 (2d Dept. 2003); Noriega v. Sauerhaft, 5 AD3d 121, 771 NYS2d 895 (1st Dept. 2004). Indeed, this Court [*2]finds that the MRI films, which confirmed a torn medial meniscus, amounts to objective evidence of a serious injury. Ortiz, supra , citing Medley v. Lopez, 7 AD3d 470, 777 NYS2d 473 (1st Dept. 2004); Vignola v. Varrichio, 243 AD2d 464, 662 NYS2d 831 (2d Dept. 1997). See also Mercado v. Doyle, 297 AD2d 719, 747 NYS2d 772 (2d Dept. 2002). In accord with the prevailing case law, the plaintiff's evidence sets forth material issues of fact worthy of the determination rendered by the trier of fact.

Moreover, the plaintiff's medical records and Dr. Goldstein's testimony rendered an explanation for the gap in treatment, to wit, further treatment would have been palliative. Thus, the jury made the ultimate decision. Toure, supra ; Rubino Scherrer, 17 Misc 3d 1131(A), 851 NYS2d 73 (Sup. Ct. Nassau County 2007).

Considering the foregoing, defendant's motions for a directed verdict and a judgment notwithstanding the verdict are denied.

This constitutes the decision and order of the Court.

Dated: March 6, 2009__________________

Genine D. Edwards

Judge of Civil Court