DiPalma v. Villa

8 Citing cases

  1. Candia v. Omonia Cab Corp.

    6 A.D.3d 641 (N.Y. App. Div. 2004)   Cited 31 times

    In accordance with the trial court's instruction, once the jury determined that the plaintiff sustained a permanent loss of use of a body organ, member, function or system, it did not consider the remaining categories of serious injury submitted for their consideration. The plaintiff's evidence was insufficient with respect to the so-called "90/180 day" category, as he testified that he returned to work, albeit for partial shifts as a cab driver, within about two months of the accident, and his only resulting limitation was his inability to drive his cab for a full shift ( see Scott v. Hing Chee Leung, 287 A.D.2d 612; Scicutella v. Town of Hempstead, 287 A.D.2d 611; Grossman v. Town of Hempstead, 278 A.D.2d 366; DiPalma v. Villa, 237 A.D.2d 323). Nor did he establish a prima facie case that he had sustained a "permanent consequential limitation of use of a body organ or member" or a "significant limitation of use of a body function or system." Although the plaintiff's expert physician testified that the plaintiff sustained two bulging discs as a result of the accident, and had a 33% restriction of different cervical spine movements, he never "explained the objective medical tests he performed to support his determination" ( Duldulao v. City of New York, 284 A.D.2d 296, 297; see Ersop v. Variano, 307 A.D.2d 951, 952; Delpilar v. Browne, 282 A.D.2d 647, 648; Merisca v. Alford, 243 A.D.2d 613, 614).

  2. Berman v. General Electric Cap Auto

    300 A.D.2d 522 (N.Y. App. Div. 2002)   Cited 3 times

    ) to set aside the jury verdict in favor of the plaintiff finding that he had sustained a medically-determined injury which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment (see Insurance Law § 5102[d]). Based on the evidence presented by the plaintiff at trial, no rational jury could have found for the plaintiff on this issue (see Krakofsky v. Fox-Rizzi, 273 A.D.2d 277, 278; Lyons v. McCauley, 252 A.D.2d 516; O'Brien v. Covert, 187 A.D.2d 419, 420). The plaintiff's evidence at trial failed to establish a prima facie case that he was curtailed from performing his usual activities to a great extent during 90 out of the first 180 days immediately following the subject accident (see Licari v. Elliott, 57 N.Y.2d 230, 236; Randazzo v. Morris, 269 A.D.2d 513, 514; Hausman v. Gourville, 248 A.D.2d 674; DiPalma v. Villa, 237 A.D.2d 323; Lichtman-Williams v. Desmond, 202 A.D.2d 646; Baker v. Zelem, 202 A.D.2d 617, 618). At trial, the plaintiff "did not detail or even outline in a general fashion [his] inability to perform substantially all of [his] customary daily activities" (Lebreton v. New York City Tr. Auth., 267 A.D.2d 211, 213). RITTER, J.P., FRIEDMANN, LUCIANO and H. MILLER, JJ., concur.

  3. Ingram v. Doe

    296 A.D.2d 530 (N.Y. App. Div. 2002)   Cited 15 times

    The affidavits of Ingram's treating chiropractors failed to set forth any objective evidence to support her allegation that pre-existing injuries were exacerbated by and causally related to the subject accident (see Napoli v. Cunningham, 273 A.D.2d 366; Vitale v. Carson, 258 A.D.2d 647; Nadrich v. Woodcrest Country Club, 250 A.D.2d 827). Moreover, in light of Ingram's admission that she returned to work at two full-time jobs within two months of the accident, the conclusory allegation in her affidavit that she was forced to curtail recreational and household activities was insufficient to demonstrate that she sustained a medically-determined injury or impairment which prevented her from performing substantially all of the material acts constituting her normal daily activities for not less than 90 of the first 180 days following the accident (see Insurance Law § 5102[d]; Lauretta v. County of Suffolk, 273 A.D.2d 204; DiPalma v. Villa, 237 A.D.2d 323). Accordingly, the Supreme Court erred in denying that branch of the appellant's motion which was for summary judgment against the plaintiff Carol Ingram.

  4. Scott v. Leung

    287 A.D.2d 612 (N.Y. App. Div. 2001)   Cited 7 times

    The record is devoid of any other evidence confirming any significant curtailment of the plaintiff's daily activities which are related to her alleged injuries. Thus, the plaintiff failed to demonstrate that she was prevented from performing substantially all of the material acts which constituted her usual and customary daily activities for a period of not less than 90 days during the 180-day period immediately following the accident (see, Licari v. Elliott, 57 N.Y.2d 230; Buonaiuto v. Shulberg, 254 A.D.2d 384; DiPalma v. Villa, 237 A.D.2d 323). Accordingly, the Supreme Court erred in denying the defendant's motion for summary judgment dismissing the complaint.

  5. Krakofsky v. Fox-Rizzi

    273 A.D.2d 277 (N.Y. App. Div. 2000)   Cited 14 times

    Specifically, the plaintiff failed to submit evidence in the form of medical testimony or records to support his claim that he sustained a medically-determined injury (see, Ryan v. Xuda, 243 A.D.2d 457; Schaefer v. Pierce, 205 A.D.2d 521; Starosta v. Pedzik, 185 A.D.2d 308; Traugott v. Konig, 184 A.D.2d 765). The plaintiff's entire case rested upon his own vague and conclusory assertions of his inability to perform unspecified activities after the accident due to subjective complaints of pain (see, Estrella v. Marano, 255 A.D.2d 358; DiPalma v. Villa, 237 A.D.2d 323; Nunez v. Dabrowski, 185 A.D.2d 269; Traugott v. Konig, supra). In determining a motion pursuant to CPLR 4401, the trial court must decide whether the plaintiff has presented a prima facie case, and the motion should be granted if no rational jury could find for the plaintiff based upon the evidence presented (see, Lyons v. McCauley, 252 A.D.2d 516).

  6. Keane v. Maringola

    270 A.D.2d 458 (N.Y. App. Div. 2000)   Cited 1 times

    The court should have granted the defendant's motion for judgment as a matter of law. The evidence presented at trial was insufficient, as a matter of law, to prove that the plaintiff Marna Keane sustained a serious injury within the meaning ofInsurance Law § 5102(d) (see, Kosto v. Bonelli, 255 A.D.2d 557;Fountain v. Sullivan, 261 A.D.2d 795; DiPalma v. Villa, 237 A.D.2d 323). KRAUSMAN, J.P., H. MILLER, SCHMIDT, and SMITH, JJ., concur.

  7. Decaires v. Love

    261 A.D.2d 502 (N.Y. App. Div. 1999)   Cited 1 times

    In support of their motion, the defendants established a prima facie case that the infant plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) ( see, Baldasty v. Cooper, 238 A.D.2d 367; Craft v. Brantuk, 195 A.D.2d 438; Tatti v. Cummings, 193 A.D.2d 596; Stadier v. Findley, 148 A.D.2d 600). Further, the plaintiffs failed to raise a triable issue of fact as to whether the infant plaintiff suffered a medically-determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for 90 of the 180 days immediately following the injury ( see, Snyder v. Perez, 246 A.D.2d 526; Curry v. Velez, 243 A.D.2d 442; DiPalma v. Villa, 237 A.D.2d 323; Lichtman-Williams v. Desmond, 202 A.D.2d 646). Bracken, J. P., Thompson, Goldstein, McGinity and Schmidt, JJ., concur.

  8. Cocivera v. Waldowsky

    258 A.D.2d 613 (N.Y. App. Div. 1999)   Cited 1 times

    The conclusion of the plaintiff's chiropractor that the plaintiff suffers constant pain was based upon the plaintiff's subjective complaints of pain ( see, Delaney v. Rafferty, 241 A.D.2d 537; Lincoln v. Johnson, 225 A.D.2d 593; Barrett v. Howland, 202 A.D.2d 383), rather than a medically-determined injury ( cf., Puma v. Player, 233 A.D.2d 308; Washington v. Mercy Home for Children, 232 A.D.2d 549; Mattei v. Kennedy, 243 A.D.2d 690; Bassett v. Romano, 126 A.D.2d 693). Moreover, the plaintiff's evidence failed to raise a triable issue of fact as to whether she suffered a medically-determined injury which prevented her from performing all or substantially all of her usual and customary daily activities for 90 of the first 180 days following the collision ( see, Insurance Law § 5102 [d]; Snyder v. Perez, 246 A.D.2d 526; Curry v. Velez, 243 A.D.2d 442; DiPalma v. Villa, 237 A.D.2d 323; Baker v. Zelem, 202 A.D.2d 617, 618). O'Brien, J. P., Ritter, Joy and Altman, JJ., concur.