Opinion
2007-113 Q C.
Decided July 30, 2008.
Appeal from a judgment of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered August 10, 2006. The judgment, entered upon an order granting plaintiff's motion for summary judgment on the issue of liability and a jury verdict in favor of plaintiff on the issue of damages, awarded plaintiff the principal sum of $25,000. The appeal from the judgment brings up for review orders of the same court denying defendant's CPLR 4401 and 4404 motions.
Judgment affirmed without costs.
PRESENT: PESCE, P.J., WESTON PATTERSON and RIOS, JJ.
In this action to recover damages for personal injuries arising out of a motor vehicle accident, the jury found that plaintiff met the threshold requirement of serious injury pursuant to Insurance Law § 5102 (d) in that he had sustained a permanent consequential limitation of use of a body organ or member. The jury awarded plaintiff $12,500 for past pain and suffering, and $12,500 for future pain and suffering. Motions by defendant for judgment as a matter of law pursuant to CPLR 4401 and to set aside the verdict as against the weight of the evidence pursuant to CPLR 4404, or, in the alternative, to reduce the verdict as excessive were denied. Judgment was subsequently entered in favor of plaintiff in the principal sum of $25,000.
A motion for judgment as a matter of law, made pursuant to CPLR 4401, may be granted only when the court finds that, on the evidence presented, there is no rational process by which the jury could find in favor of the nonmoving party ( see e.g. Szczerbiak v Pilat, 90 NY2d 553; Figueroa v Sliwowski , 43 AD3d 858). The court must afford the party opposing the motion every inference which may be properly drawn from the facts presented, and the facts must be considered in the light most favorable to the nonmoving party ( see e.g. Figueroa, 43 AD3d at 859). Viewing the evidence presented at trial in the light most favorable to plaintiff, we find that it was sufficient to establish a prima facie case that, as a result of the subject accident, plaintiff sustained a permanent consequential limitation of use of a body organ or member. Therefore, the trial court properly denied defendant's motion pursuant to CPLR 4401 to dismiss the complaint as a matter of law for failure to establish a prima facie case.
The court also properly denied defendant's motion made pursuant to CPLR 4404. A jury's verdict should be set aside as against the weight of the evidence only
where the evidence was so in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence ( see e.g. Figueroa, 43 AD3d at 859). Where the verdict can be reconciled with a reasonable view of the evidence, it should be presumed that the jury adopted that view ( id.). Here, a fair interpretation of the evidence supports the jury's conclusion, based on the evidence before it, that plaintiff sustained a permanent consequential limitation.
Contrary to defendant's contention, plaintiff's expert, Dr. Rosarion, was more than a nontreating physician retained only as an expert. Dr. Rosarion took over the clinic at which plaintiff was treated, and the medical records to which he testified were in his custody. Moreover, plaintiff's original treating physician was unavailable to testify. In these circumstances, it was not reversible error to allow Dr. Rosarion to testify as to plaintiff's past medical complaints relating to his treatment with Dr. Rosarion's clinic ( see e.g. Figueroa, 43 AD3d at 859).
Finally, the jury's award of $12,500 for past pain and suffering, and $12,500 for future pain and suffering was not unreasonable and did not deviate materially from what would be reasonable compensation ( see e.g. Pearson v Walker , 44 AD3d 1019; Calderon v Moriello , 11 Misc 3d 137 [A], 2006 NY Slip Op 50503[U] [App Term, 2d 11th Jud Dists 2006]).
Pesce, P.J., and Rios, J., concur.
Weston Patterson, J., dissents in a separate memorandum.
Viewing the evidence in the light most favorable to plaintiff, I cannot conclude that plaintiff met his burden of showing that he sustained a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident. Accordingly, I respectfully dissent.
To satisfy the serious injury threshold, a plaintiff must submit objective medical proof of the injury, as well as competent medical evidence establishing a causal connection between the injury and the accident ( Toure v Avis Rent a Car Sys., 98 NY2d 345). An expert who merely performs a single examination years after the accident, without more, cannot establish the necessary causal connection between the injury and the accident ( Vaughan v Baez, 305 AD2d 101).
Here, plaintiff presented no contemporaneous objective evidence to support a finding that he sustained a serious injury as a result of the automobile accident. Indeed, plaintiff presented no proof of any limitations of motion contemporaneous with the accident, nor did he seek to admit into evidence the medical records from his treating physician ( see Rodriguez v Cesar , 40 AD3d 731 , 733; Earl v Chapple , 37 AD3d 520 , 521; Ranzie v Abdul-Massih , 28 AD3d 447 , 448). Instead, plaintiff relied on his expert, Dr. Rosarion, who examined plaintiff almost eight years after the accident and whose opinion as to the cause of plaintiff's injury was based solely on plaintiff's subjective statements concerning the timing of his symptoms. Such evidence, in my opinion, is speculative and insufficient to establish the causal link as a matter of law ( see Vaughan, 305 AD2d at 101).
Moreover, it was reversible error to allow Dr. Rosarion, as a nontreating physician, to testify regarding the history of the accident as related by plaintiff or concerning plaintiff's medical complaints ( see e.g. Adkins v Queens Van-Plan, 293 AD2d 503). In order to prevent unfair bolstering of a party's testimony regarding the cause and extent of his injuries, a nontreating doctor, retained only as an expert, may not testify to the history of an accident or a plaintiff's medical complaints ( see e.g. Adkins, 293 AD2d at 504; Easley v City of New York, 189 AD2d 599; De Luca v Kameros, 130 AD2d 705; Nissen v Rubin, 121 AD2d 320; Matter of Slade, 106 AD2d 914). Since Dr. Rosarion's testimony as to plaintiff's medical complaints did nothing but bolster plaintiff's testimony, its admission constituted reversible error.
Accordingly, I vote to reverse the judgment, grant defendant's motion for judgment and dismiss the complaint.