Bacon v. BostanyBacon v. Bostany
Charles Bacon, Respondent, v John P. Bostany, Appellant. [960 NYS2d 190]—
Ordered that the appeal frоm the order is dismissed; and it is further,
Ordered that the judgment is reversed, on the law, that branch of the defendant‘s motion which wаs pursuant to
Ordered that one bill of costs is awarded to the defendant.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see
The plaintiff allegedly was injured when the vehicle he was driving was struck in the rear by a vehicle owned and operated by the defendant. Thе plaintiff commenced this action against the defendant to recover damages allegedly sustainеd as a result of the defendant‘s negligence.
After the Supreme Court granted the plaintiff‘s motion for summary judgment оn the issue of liability, a trial was held on the issue of damages. The plaintiff testified that he sustained injuries to his neck and back as a result of the accident, and that he sought treatment with an orthopedic surgeon and a physical therapist. After the trial, the jury returned a verdict finding that, as a result of the accident, the plaintiff sustainеd a serious injury due to (1) a significant limitation of use of a body
“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 thе 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], lv denied 20 NY3d 855 [2013]; see Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]; Courtney v Port Auth. of N.Y. & N.J., 45 AD3d 801, 802 [2007]). 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” (Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; see Flynn v Elrac, Inc., 98 AD3d 938, 939 [2012]).
Here, based on the evidence presented at the trial, there was no valid line of reasoning and permissible inferences which could possibly have led the jury to rationally conclude that thе plaintiff sustained a serious injury within the meaning of
“Although a bulging or herniated disc may constitute a serious injury within the meаning of
Insurance Law § 5102 (d) , a plaintiff must provide objective evidence of the extent or degree of the alleged physical limitations resulting from the disc injury and its duration” (Diaz v Turner, 306 AD2d 241, 242 [2003] [internal quotation marks omitted]; see Rivera v Bushwick Ridgewood Props., Inc., 63 AD3d 712, 713 [2009]; Jules v Calderon, 62 AD3d 958, 959 [2009]; Casco v Cocchiola, 62 AD3d 640, 641 [2009]).
The testimony adduced from the plaintiff‘s doctor and physical therapist did not fulfill the objective-evidence requirement since those witnesses did not provide any explanation as to what objective tests were used to make their determinations that the plaintiff suffered from а limitation in the range of motion of his spine (see Candia v Omonia Cab Corp., 6 AD3d 641, 643 [2004]; see e.g. Catalano v Kopmann, 73 AD3d 963 [2010]; Niles v Lam Pakie Ho, 61 AD3d 657, 659 [2009]). In addition, the plaintiff failed to fulfill the permanency requirеment of the permanent consequential limitation category, as the medical evidence he submitted at trial was not based on a recent examination (see Estrella v GEICO Ins. Co., 102 AD3d 730 [2013]; Nesci v Romanelli, 74 AD3d 765, 766 [2010]).
Moreover, the plaintiff testified that, aftеr the subject accident, he only missed five days of work before returning full time, and was not confined to his home or bed for any period following the accident. Further, he did not proffer any evidence that he was unablе to perform substantially all of his daily activities for 90 days during the 180-day period immediately following the accident. Consequently, the plaintiff also failed to establish that he sustained a serious injury under the “90/180” category (see Nunez v Motor Veh. Acc. Indem. Corp., 96 AD3d 917, 919 [2012]; Parise v New York City Tr. Auth., 94 AD3d 839, 840 [2012]; Lanzarone v Goldman, 80 AD3d 667, 669 [2011]; Nesci v Romanelli, 74 AD3d at 766).
Accordingly, the Supreme Court should have granted that branch of the defendant‘s motion which was pursuant to
In light of our determination, we need not address the defendant‘s remaining contentions.
Mastro, J.P., Lott, Austin and Sgroi, JJ., concur.