Opinion
No. 2011–1109 K C.
2012-08-27
Decis BEECH, Plaintiff, and Janet Beech, Respondent, v. Erin SMITH, Appellant.
Present: WESTON, J.P., PESCE and ALIOTTA, JJ.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered November 8, 2010. The judgment, upon a jury verdict, awarded plaintiff Janet Beech the principal sum of $150,000.
ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for the entry of a judgment dismissing so much of the complaint as was asserted by plaintiff Janet Beech.
Plaintiffs Decis Beech and Janet Beech commenced this action to recover for personal injuries allegedly sustained in a motor vehicle accident. After the action had been settled as to plaintiff Decis Beech, plaintiff Janet Beech (plaintiff) proceeded to trial against defendant. At the liability phase of the bifurcated trial, plaintiff testified that she had been struck by a vehicle driven by a light-skinned black woman. After the vehicle sped away, a crossing guard approached plaintiff and showed her a piece of paper with a number on it. Plaintiff never learned the name of the crossing guard, nor did she learn the identity of the driver or the owner of the vehicle that had struck her.
At the close of the liability phase, defense counsel moved for a directed verdict based on plaintiff's failure to establish that defendant Erin Smith was the owner and operator of the vehicle involved in the accident. The court denied the motion, and defendant appeals. We now reverse.
Other than a license plate number which had been provided by a witness who did not testify, plaintiff offered no proof that defendant owned or operated the vehicle which had struck her ( see Johnson v. Kernizant, 2003 N.Y. Slip Op 50919[U] [App Term, 2d & 11th Jud Dists 2003] ). Plaintiff admitted that she was unaware of the identity of the owner of the vehicle or its driver. Moreover, she was unaware of the identity of the crossing guard, who was the only other witness to the accident, who had provided a license plate number. Without any testimony from the crossing guard, plaintiff could not establish that defendant's vehicle had been involved in the accident. Indeed, defendant never appeared at a deposition nor did she testify at trial. Since plaintiff, as the sole trial witness, was unable to identify defendant as the vehicle's owner or driver, the evidence was legally insufficient to support the jury's verdict.
Plaintiff argues, for the first time on appeal, that defendant waived the argument that she is not a proper defendant by not pleading it as an affirmative defense, and by failing to object to the verdict sheet and the court's charge as given. Since plaintiff failed to raise this argument below, it is unpreserved for appellate review. In any event, plaintiff ultimately bears the burden of proving the identity of the owner or driver, regardless of whether defendant pleaded it as an affirmative defense.
We note that the evidence was also insufficient to support the jury's verdict on damages. In order to establish a serious injury under the “90/180 day” category, plaintiff was required to demonstrate that she “[had] been curtailed from performing ... [her] usual activities to a great extent” during 90 of the 180 days immediately following the accident in question (Licari v. Elliott, 57 N.Y.2d 230, 236 [1982];seeInsurance Law § 5102[d] ). Plaintiff failed to sustain this burden, as she offered no evidence to show that her injuries had curtailed her from performing her usual and customary activities to a great extent for the requisite period ( see Lanzarone v. Goldman, 80 AD3d 667 [2011];Nesci v. Romanelli, 74 AD3d 765 [2010];Hamilton v. Rouse, 46 AD3d 514 [2007];Rodriguez v. Virga, 24 AD3d 650 [2005];Berman v. General Elec. Cap Auto, 300 A.D.2d 522 [2002] ).
Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment dismissing so much of the complaint as was asserted by plaintiff Janet Beech.
WESTON, J.P., PESCE and ALIOTTA, JJ., concur.