Vale v Floyd
Annotate this CaseDecided on July 28, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and SOLOMON, JJ.
2012-2556 Q C
Irma Vale, Respondent,
against
Nancy A. Floyd, Appellant.
Appeal from a judgment of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered May 16, 2012. The judgment, entered upon the denial of defendant's motion pursuant to CPLR 4401 for a directed verdict; upon a jury verdict; and upon the denial of defendant's motion to set aside the jury verdict and for judgment as a matter of law dismissing the complaint, awarded plaintiff the principal sum of $60,000.
ORDERED that the judgment is affirmed, without costs.
Plaintiff commenced this action in Supreme Court, Queens County, to recover for personal injuries she sustained as a pedestrian, allegedly caused by an automobile accident. In her verified complaint, plaintiff alleged that she had been struck by defendant's vehicle and that, as a result of the impact, she had sustained serious injuries as that term is defined by Insurance Law § 5102 (d). The case was transferred to the Civil Court, Queens County, pursuant to CPLR 325 (d). After defendant was found to be liable for the happening of the accident, a trial on the issue of damages was held. At the close of the evidence in the damages trial, defendant made an oral motion for a directed verdict (see CPLR 4401) on the sole ground that plaintiff had failed to explain the gap in her treatment. The Civil Court denied the motion.
We find that, contrary to defendant's argument, plaintiff's doctor provided an adequate explanation for the gap, by testifying that plaintiff had reached maximum medical improvement and that further therapy would not change her condition (see Gaviria v Alvardo, 65 AD3d 567 [2009]). Consequently, the Civil Court properly denied defendant's motion for a directed verdict.
Following the trial on damages, the jury returned a verdict finding that, as a result of the accident, plaintiff had sustained a serious injury under the significant limitation of use and 90/180-day categories of Insurance Law § 5102 (d), but had not sustained a serious injury under the permanent consequential limitation of use category. Defendant then moved to, among other things, set aside so much of the jury verdict as found that plaintiff had sustained a serious injury under the significant limitation of use and 90/180-day categories, and for judgment as a matter of law dismissing the complaint (see CPLR 4404 [a]). The Civil Court denied the motion, and defendant appeals from the judgment that was subsequently entered.
"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 conclusions 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, [*2]844 [2006]; see Lingechetty v Shukla, 114 AD3d 832 [2014]; McDonald v Kohanfars, 106 AD3d 1058 [2013]; Michael H. Spector, AIA, P.C. v Billy Smith's Sports Ctr., Inc., 95 AD3d 967 [2012]). "When presented with such a motion, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant" (Bacon v Bostany, 104 AD3d 625, 627 [2013] [internal quotation marks omitted]; see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]).
In the present case, there was conflicting testimony by experts for plaintiff and defendant. In addition, there was testimony from plaintiff regarding the effect that the injuries had upon her life. Viewing the evidence in the light most favorable to plaintiff, and affording her every possible inference, we find that a fair interpretation of the evidence would allow the jury to conclude that plaintiff had sustained serious injuries as defined in Insurance Law § 5102 (d) (see e.g. Lolik v Big V Supermarkets, 86 NY2d 744, 745-746 [1995]; Arroyo v Fox, 92 AD3d 705 [2012]). Consequently, the Civil Court properly denied defendant's motion to set aside the verdict.
Accordingly, the judgment is affirmed.
Pesce, P.J., and Solomon, J., concur.
Weston, J., dissents in a separate memorandum.
Weston, J., dissents and votes to reverse the judgment and grant defendant's motion to set aside the jury verdict and for judgment as a matter of law dismissing the complaint in the following memorandum:
"A motion pursuant to CPLR 4404 (a) to set aside a jury verdict and for judgment as a matter of law will be granted where there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusions reached by the jury on the basis of the evidence presented at trial" (Linson v City of New York, 98 AD3d 1002, 1002-1003 [2012]; see Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]; Nahar v Socci, 112 AD3d 592 [2013]). I agree with defendant's contention that, based upon the evidence presented at trial, there was no valid line of reasoning and permissible inferences which could possibly have led the jury to rationally conclude that plaintiff had sustained a serious injury under the significant limitation of use or 90/180-day categories of Insurance Law § 5102 (d) as a result of the accident in question. In order to establish that she had suffered a "significant limitation of use of a body function or system, plaintiff was required to provide objective evidence of the extent or degree of the limitation and its duration (see Laruffa v Yui Ming Lau, 32 AD3d 996 [2006]). Plaintiff's trial evidence was insufficient to establish, prima facie, that, after the accident, the limitation of the use of her spine and left shoulder was significant in degree (see DiCariano v County of Rockland, 111 AD3d 879 [2013]). While plaintiff's doctor testified that his testing revealed specified limitations in plaintiff's range of motion in her spine and left shoulder, he was unable to establish what are considered normal ranges of motion with which to compare his measurements, thus leaving the jury, as finders of fact, to speculate as to the meaning of the doctor's physical findings (see Djetoumani v Transit, Inc., 50 AD3d 944 [2008]).
Plaintiff also failed to present evidence showing that her injuries had curtailed her from performing her usual and customary activities to a great extent for the requisite period (see Parise v New York City Tr. Auth., 94 AD3d 839 [2012]). Rather, the testimony at trial established only that it had been harder for plaintiff to do certain activities with her family on the weekends and that she had experienced pain when making certain movements (see Lanzarone v Goldman, 80 AD3d 667 [2011]).
Therefore, I vote to reverse the judgment and grant defendant's motion to set aside the jury verdict and for judgment as a matter of law dismissing the complaint.
Decision Date: July 28, 2014
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