Ciocca v. ParkCiocca v. Park
On October 27, 2002, plaintiff Raffaele Ciocca (hereinafter plaintiff), a resident of Canada, was struck at an intersection while traveling north on the Taconic Parkway by a vehicle
A directed verdict is warranted when, “upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party” (Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; see Calafiore v Kiley, 303 AD2d 816, 816-817 [2003]; Cross v Finch Pruyn & Co., 281 AD2d 836, 836 [2001]). In considering such motion, “the moving party has the burden of showing that, upon viewing the evidence in the light most favorable to the plaintiff and affording the plaintiff the benefit of every inference . . . the plaintiff has not made out a prima facie case” (Holy Temple First Church of God in Christ v City of Hudson, 17 AD3d 947, 947 [2005]).
Focusing on the issue of causation, plaintiff proffered his own testimony and that of Sutton, whose testimony was based upon plaintiff‘s subjective statements, X rays and an MRI. Sutton testified that it was impossible to tell from the X rays, which he viewed in his office, whether the car accident caused plaintiff‘s injuries. To the extent that plaintiffs contend that Sutton should have been permitted to rely upon Lam‘s records, written in both English and French, to testify as to the issue of causation, plaintiffs’ own counsel agreed, during trial, that Sutton would only use those records written in English. To the extent that plaintiffs contend that it was error to preclude Sutton from testifying about plaintiff‘s MRI and X rays, Sutton did testify regarding his office review of the X rays,1 and the testimony about the MRI was properly excluded because Sutton exclusively
With plaintiffs failing to submit even a scintilla of objective medical evidence on the issue of causation, and with no contention of error raised upon appeal sufficient, even if valid, to cure the lack of causative proof, Supreme Court properly granted defendants’ motion for a directed verdict (see Holy Temple First Church of God in Christ v City of Hudson, supra at 948; Franchini v Palmieri, 307 AD2d 1056, 1057-1058 [2003], affd 1 NY3d 536 [2003]; Brown v County of Albany, supra at 821; Broderick v Spaeth, 241 AD2d 898, 901 [1997], lv denied 91 NY2d 805 [1998]; Wood v Hein Trucking Corp., 115 AD2d 181, 183 [1985]).
Mercure, J.P., Crew III, J., concur.
Lahtinen, J. (dissenting). We respectfully dissent. We are not persuaded that plaintiffs’ proof was so devoid of merit as to justify summary dismissal. The medical proof established that plaintiff Raffaele Ciocca (hereinafter plaintiff) had a large tear in his right rotator cuff and a ruptured bicep that significantly limited the use of his right arm. The crux of the dispute was whether plaintiff suffered this condition as a result of trauma (i.e., the October 2002 accident) or whether it was a degenerative condition. Plaintiff testified that, prior to the accident, he had no problems with the arm and was able to actively participate in his construction business. At trial, he testified that following the accident, he could not lift his right arm and was no longer able to perform certain work that he was able to perform prior to the accident. Plaintiff sought medical treatment the day following the accident and, when his primary care physician was unable to adequately address his symptoms after five months, he sent plaintiff to John Sutton, a surgeon with extensive experience in treating rotator cuff injuries.
Sutton performed a comprehensive exam of plaintiff‘s right shoulder, made a clinical finding that plaintiff had a torn rotator cuff and ordered an MRI to confirm that finding and to further define the nature of the injury to properly chart a course of treatment. While Sutton testified at trial that the precise date
To be sure, the evidence was presented in a disjointed fashion, somewhat complicated because treatment occurred in Canada, some medical records were in French and plaintiffs’ questionable trial strategy of not calling the investigating police officer, the emergency medical personnel that treated plaintiff at the scene, his brother who saw him five hours after the accident or the doctor that treated him the day after the accident. Nevertheless, the jury should have been allowed to sort out and weigh the proffered evidence especially where, as here, all of the direct proof on both sides was complete and the charge conference had been held (see Jacino v Sugerman, 10 AD3d 593, 594-595 [2004]; Austin v Consilvio, 295 AD2d 244, 246 [2002]; Rosario v City of New York, 157 AD2d 467, 472 [1990]). We would reverse and remit for a new trial.
Kane, J., concurs. Ordered that the judgment is affirmed, without costs.