Charles v Sunlight Linen Corp.
Annotate this CaseDecided on April 7, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and SOLOMON, JJ
2009-74 K C.
Winneth Charles, Plaintiff, -and- EDD KELLY, Respondent,
against
Sunlight Linen Corp. and MARCOS GOMEZ, Appellants.
Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered May 14, 2008. The order denied defendants' motion, pursuant to CPLR 4404 (a), to set aside so much of a jury verdict as found that plaintiff Edd Kelly had sustained a serious injury under the 90/180-day category of Insurance Law § 5102 (d), and for judgment as a matter of law dismissing the complaint insofar as asserted by plaintiff Edd Kelly.
ORDERED that the order is reversed, without costs, and defendants' motion, pursuant to CPLR 4404 (a), to set aside so much of a jury verdict as found that plaintiff Edd Kelly had sustained a serious injury under the 90/180-day category of Insurance Law § 5102 (d), and for judgment as a matter of law dismissing the complaint insofar as asserted by plaintiff Edd Kelly is granted.
Plaintiffs commenced this action in Supreme Court, Kings County, to recover damages for personal injuries allegedly caused by an automobile accident on June 9, 1998. After a trial on the issue of liability, defendants were found to be at fault in the happening of the accident. Subsequently, the complaint, insofar as asserted by plaintiff Winneth Charles, was dismissed, and the matter was transferred to the Civil Court pursuant to CPLR 325 (d).
At a trial on the issue of damages, plaintiff Edd Kelly, who was 47 years old at the time of the accident, testified that he had sustained injuries to his neck and back as a result of the accident, and that he had sought treatment at a medical clinic. Kelly further testified that immediately after the accident, he had trouble doing basic things at home, such as brushing his teeth, cooking and cleaning, because of pain in his neck and back. He was not working at the time of the accident. One of Kelly's treating doctors testified that he had examined Kelly one week after the accident and that testing revealed limited range of motion in Kelly's cervical and lumbar spine. He next saw Kelly seven months later. The doctor's initial examination report, which was entered into evidence, advised Kelly to avoid strenuous activities "at the present time" and to start a home exercise program. No other medical records from the clinic were offered into [*2]evidence. At the close of Kelly's case, the Civil Court denied defendants' oral motion for a directed verdict and their subsequent motion for dismissal of the complaint. The court charged the jury on three categories of serious injury—the significant limitation of use, permanent consequential limitation of use and 90/180-day categories (see Insurance Law § 5102 [d]).
The jury returned a verdict finding that, as a result of the accident, Kelly had sustained a serious injury only under the 90/180-day category, which requires a showing of a medically determined injury or impairment of a non-permanent nature that prevented him from performing substantially all of the material acts that constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident, and awarded Kelly the sum of $50,000 for past pain and suffering. Defendants moved, pursuant to CPLR 4404 (a), to, among other things, set aside so much of the jury verdict as found that Edd Kelly had sustained a serious injury under the 90/180-day category of Insurance Law § 5102 (d), and for judgment as a matter of law dismissing the complaint insofar as asserted by plaintiff Kelly. By order entered May 14, 2008, the Civil Court denied defendants' motion. This appeal by defendants ensued, and we now reverse the order and grant defendants' motion.
"A motion for judgment as a matter of law pursuant to CPLR . . . 4404 may 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 lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party" (Tapia v Dattco, Inc., 32 AD3d 842, 844 [2006]). In considering the motion, the opposing party's evidence must be accepted as true, and that party must be accorded every favorable inference that can reasonably be drawn therefrom (see Tapia, 32 AD3d at 844).
Viewing the evidence in the light most favorable to plaintiff Edd Kelly, there is no rational process by which the jury could have found in his favor on the issue of whether he had sustained a medically determined injury of a nonpermanent nature under the 90/180-day category (see Nunez v Motor Veh. Acc. Indem. Corp., 96 AD3d 917, 918-919 [2012]; Lanzarone v Goldman, 80 AD3d 667, 669 [2011]; Hamilton v Rouse, 46 AD3d 514, 516-517 [2007]). Kelly's doctor testified about his two examinations of Kelly one week after the accident and seven months later, but failed to adequately testify concerning any alleged limitations of Kelly's ability to function during the statutory period (Nunez, 96 AD3d at 919; see Lanzarone, 80 AD3d at 669). As Kelly did not submit competent medical evidence to support his claim that the injuries he allegedly sustained as a result of the subject accident rendered him unable to perform substantially all of his daily activities for not less than 90 of the 180 days immediately thereafter, the Civil Court should have granted defendants' motion.
Accordingly, the order is reversed and defendants' motion, pursuant to CPLR 4404 (a), so much of a jury verdict as found that plaintiff Edd Kelly had sustained a serious injury under the 90/180-day category of Insurance Law § 5102 (d), and for judgment as a matter of law dismissing the complaint insofar as asserted by plaintiff Edd Kelly is granted.
Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: April 07, 2014
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