Smith v Vohrer

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Smith v Vohrer 2008 NY Slip Op 33660(U) April 2, 2008 Supreme Court, Bronx County Docket Number: 6677/04 Judge: Mark Friedlander Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] NEW YORK SUPREME COURT - COUNTY OF BRO:\X PART IA-25 DEBORAH ANNE SMITH, Plamtiff, MEMORANDl:M DECISJOi\! ORDER Index No.6677!04 -againstCLIFFORD C. VOHRER. LEASE PLAN USA. INC., DANIEL SOTOMAYOR and LA MANADA AUTO CORP., Defendants. - - - - - - - _ ...- 1l0K MARK FRIEDLANDER: Defcndants Clifford C. Vohrer and Lease Plan U.S.A., Inc. (hereinafter collectively referred to as Vohrer) move for an order renewing its tnal motions made pursuant to CPLR 4401 and for an order, pursuant to CPLR 4404, setting aside the verdict and entering judgment not withstanding the verdict, or, in the alternative, granting a new trial on the grounds that the verdict is against the weight of the credible evidence. That portion ofVohrcr's application whtch relates to the question ofwhcthcr plamtiff suffered a serious Injury is decided hereinafter All other aspects ofVohrer's applicatIOn (contained in a separate motion folder) are addressed in another dectsion and order, issued simultaneously herewith. The court will treat this portion of defendant Vohrer's motion as one made pursuant to CPLR 4404 only A motion made pursuant to CPLR 4401 is made during the trial; a motion made pursuant to CPLR 4404 is made post-trial As a post-trial motion, a CPLR 4404 motion often concerns issues raised at the time of trial. which is equivalent to "hat defendants tcml a "renewal" of defendants' trial motions made pursuant to CPLR 4401 (see Siegel, New York Practice,[Fourth Edition], p.685 ). ThiS IS a personal I"Jllry action in WhICh plaintiff alleges that she was inJllred as a resuit of a motor vehicle accident which took place at the mtcrsection of Bruckner Boulevard and 138" Street, Bror.\, );e\\ York on September 17, 2002. Plaintiff was a passenger in the vehicle owned by defendant La \1anada Auto Corp 2 iled On - -19 :::008 329:58 PM Bron:, County Cieri, Fii~~~~~~~~~~~~~~~~------------------------------------ [* 2] and operated by defendant Daniel Sotomayor, which came into contact with the Vohrcr ydltcic. The trial of thIs action cO!1lmen~ed on May 30, 2007 and the Jury reached its verdict on June 7, 2()07, finding, among other things, that plaintiff had" sustained a permanent consequential limItatIOn of use of a bod y organ or member, specllically her left knee" and that she had" sustaIned a signi licant hmitation of use of a body function or system, specdieally her left knee", thus finding that plaintiff had sustained a serious mjllry pursuant to Insurance Law § 51 02(d). Defendant argues that there was insllfflclent evidence for the JUry to find that plaintiff had suffered a serious injury as a result of the accident. The only evidence presented consisted ofplaintifrs testimony concermng her own injuries and the testimony of her treating physiCIan, Dr. Skven Struhl. Delendant argues that, because she had no treatment for her knee from 2003 until 2007, there was a gap of treatment which would make summary dismissal appropriate (see Pommels v. Perez, 4NY3d 566 [2005]). As to the injury itself, a torn meniscus of the left knee treated by surgery, defendant argues that this alone does not constitute a seriolls injury. citing Chan v. Casiano, 36 AD3d 580 [2"' Dept 2007] and Medley v. Lopez, 7 AD3d 470 [1" Dept 20()4]. In Chan, summary judgment was granted to defendant. Although plallltiffs doctor in that case stated that plamti ffhad suffered a meniscus tear, he also found that plamti ff had full range of motion of the knee and failed to mdlcatc that the injury was caused by the accident. He also failed to explain a four and a half year gap in treatment. In Medley, defendant was granted summary Judgment. Pla111tlffs doctor relied on an MRI report to detem1!ne that plaintiff sllffered meniscal tears in the knee. However, there was nothing in the report to indicate that the cause oflhe tears was other than degenerative in nature. In addition. there was a "lengthy" unexplained gap 111 treatment Plaintiff argues that these cases arc not all point. In the first instance. neither case involved surgery to 3 iled On - .. 9::'008 3:2958 PM BrOil'. County Cieri, Fill~~~~~~~~~~~~~~------------------------------ [* 3] repair the men;scal tear, \\ hleh 1S the sin:atJon here. Dr. Struhl operated on p'amtrff on January 16,2003. Plaintltfcltes Noriega v. Sauerhaft, 5AD3d 121 [1" Dept 2004J and Rangel-Vargas v. Vurehio, 289 AD2L1 n [I" Dept 2001] for the proposition that "eVidence that plaintiff sustained a tom meniscus that required surgery .. is sufficient to raise issues 0" fact as to whether she sustained serious injllries to her knee . "(Ran~c\- Vargas v. Vurchio at 92). Regarding the gap in treatment, plamtilTargucs that Dr. Struhl's lesllmony contains an cl-planat10n for plaintlffs failure to seek treatment after her surgery. Dr Stmhl stated that, as a restllt of the loss of cartilage "one wotlld expect an increased risk that she would develop degenerative arthntis in that part of the knee" (p. 151). As to what purpose would be achieved by pla1J1tiff seeing a doctor after her surgery, he stated that the purpose ofh15 see1J1g her. "(a)t four days I am making sure there is no infection. The wounds arc healing nicely and at a month I want to know what their motion is . and they are not walking with a hmp .. (\)hcy may go to therapy and they may not (p. 153). The context of Dr. Struhl's testimony makes clear that plaintiff would not have benefitted from further treatment. Based on this statement, plaintiff argues that plaintiffs failure to seek treatment for four years does not represent a gap in treatment. Although it was not raised by either attomcy in the motion papers, the court takes note of the fact that there was a motion for summary judgment made by defendants prior to trial. In a deCision by the lIon. Diane Renwick on >Iovember .10, 2005, the court found that defendants had not made out 3pnmafucw case The court went on to say, that In any eyent "(e)vcn if defendants had met their burtlells, they would not have been entitled to summary judgment SInce the proof submitted hy plainti ff ra1ses a triable issue of fact." The found that. since plainti ffbad submlttcd proof that she had sustained a tom meniscus III COUl1 her left knee requinns surgery, this raised a triable issue of fact as to whether she sustained a ser;ous injury, citmg Rangel-Vargas v . Vurch10 , supra. 4 iled I)n - .. 9 :::008 3:29.5S Pt,l Bronx Countv Cieri, iFill~~~~~~~~~~~~~~~~~---------------------------------------ronx County Clerk [* 4] In order to defeat ~ motion hy defendant for summary judgment, plaintiff must sho\\ that there is sufficient evidence in admissible fonn to raise a triable issue of fact (Licari v. Elliot, 57 NY2d 230 [1982]). On 3 motion to set aside the Jury's verdict and enter Judgment notwithstanding the verdict, the test is whether there IS a "valid Ime of rcasonim; and permissible inference which could possihly lead rational men to the conclu,ion reached by the jury on the basis of the evidence presented at trIal" (Cohen v. Hallmark Cards, 45 NY2d 493, 4<)9). rhesc t\Vo standards, as applied to this case, arc one and the same (see Siegel, New York Practice 14 '" I'ditionl p. 691). In addition, Justice Renwick was aware of the cessation in plaintiffs treatment in 20 rJ3, and still found sufllclent baSIS for concluding that plallltiff sustained a serious inJUry. Therefore, the deCISIOn by JustIce Renwick dcnying summary Judgment IS the law of the case. For this reason, and thc reasons stiltcd by plaintiff above, Vohrer's motion for an order setting aside the jury's verdict and entering judgment for defendant Vohrer is denied. Defendant Vohrer also argues that the court should order a new trial on the grounds that the JUry's verdict is against the weight at the credible evidence on the issue of serious injury. Defendant reltes on the testimony of the physician, Dr. Stuart Remer, who examined plainllff on his behalf. According to defendant's a!tomey, Dr. Remer found that the plainttfThad full range of motion of her left knee. In addltion, he found that the arthritis in the knee pre-existed the surgery and that the cause of the melJlscal tear was degenerative in nature. He based there findings on his review of the MRI films. Vlhile there was exacerbation of pre-existing arthntls, there was no traumallc tearing of the meniscus (p.334 of Dr. Remer's tnal testimony). In opposlllg defendant's argllJnent as to causation, plaintiff relies on the testimony of Dr Struhl, who perfonned the surgery on plamtiff. Dr. Struhl testified, based on his visual observations during surgery, that plaintiff suffered injunes caused hy trauma. lIe came to this conclusion based on the rae! that there was damage to one area of the articular cartilage carttlagc III In the knee, found in trauma cases, as opposed to a wcaring down ortb<: a diffuse manner. In addition, he found lhat the complete tcar of the medialmel1lscus, taken 5 iled On - 4/9 :::008 3::29.58 PM Bron> COLlnty Clerk Fi~~~~~~~~~~~~~~----------------------------------- [* 5] together WJth plaintiffs history of no prohlems with her knee prior to the acclcent and pain aftcr the accident. were the hasls ji)r findmg that the meniseal tear was traumatically mc\uced. In addition. as plain:iffpoinls oul, Dr. Remer testdicd that he had staled 10 IllS report that there was a causal relationship between the accident and the injury to plaintlfs knee. Considcnng that the jury had before it the (estimony ofplaintifrs treatmg surgeon who saw plaintiffs injury directly and then replired it, as opposed to the testimony of defendant's doctor who saw (he knee only by means of an MRl, it was not unreasonable for the jury to rely on Dr. Struhl', ((s(lmony in reaching its ven!;c!. Accordingly, that portion of defendant's motion which seeks a new trial, on the hasis that the jury finding of serious injury is against the weight of the credible evidence, is dCllled. This constitutes the DeClsion and Order of the Court Dated ,?J-~------ ttl?_ MARK RIEDLANDER, J.S.c' 6 iled ()n -.f 9 :2008 3:29.58 PM Bronx County Cieri,

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