Opinion
2008-917 Q C.
Decided October 6, 2009.
Appeal from a judgment of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered September 5, 2007. The judgment, upon a jury verdict, and upon the denial of defendant's application pursuant to CPLR 4401 for judgment as a matter of law, awarded plaintiff the principal sum of $80,000.
ORDERED that the judgment is reversed without costs, defendant's application pursuant to CPLR 4401 for judgment as a matter of law is granted, and the complaint is dismissed.
PRESENT: GOLIA, J.P., PESCE and RIOS, JJ.
In this action to recover damages for personal injuries arising out of a motor vehicle accident, the Civil Court denied defendant's application pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint based on plaintiff's failure to establish that he had sustained a serious injury, and the matter was submitted to the jury. The jury found, inter alia, that plaintiff had met the threshold requirement of serious injury pursuant to Insurance Law § 5102 (d) in that he had sustained an injury under the permanent consequential limitation of use, significant limitation of use and 90/180-day categories. Thereafter, the Civil Court denied a motion by defendant pursuant to CPLR 4404 to set aside the verdict as against the weight of the evidence. Judgment was subsequently entered in favor of plaintiff in the principal sum of $80,000. This appeal by defendant ensued.
"A motion for judgment as a matter of law pursuant to CPLR 4401 or 4404 may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party" ( Hamilton v Rouse, 46 AD3d 514, 516, quoting Tapia v Dattco, Inc., 32 AD3d 842). "The court must consider the facts in a light most favorable to the nonmoving party, and afford that party the benefit of every favorable inference that may be properly drawn therefrom" ( Kilakos v Mascera, 53 AD3d 527, 528).
Here, viewing the evidence in the light most favorable to plaintiff, and affording him every favorable inference, no rational jury could have concluded that he sustained a serious injury under the significant limitation of use, permanent consequential limitation of use or 90/180-day categories of Insurance Law § 5102 (d). Plaintiff's expert witness never compared his findings to normal ranges of motion ( see id. at 528). Rather, he merely made the conclusory assertion that plaintiff had suffered a 20 degree loss of lateral flexion on both sides of the neck. Furthermore, while plaintiff's expert testified that he had detected muscle spasm in plaintiff's cervical spine, he failed to offer testimony with respect to what test, if any, he had performed to induce the spasm ( see Toure v Avis Rent A Car Sys., 98 NY2d 345; Scudera v Mahbubur, 299 AD2d 535). Finally, plaintiff failed to present sufficient objective evidence to establish a medically determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary activities for not less than 90 days during the 180 days immediately following the accident (Insurance Law § 5102 [d]; see Toure, 98 NY2d at 357; Gavin v Sati, 29 AD3d 734).
In view of the foregoing, the judgment is reversed, defendant's application pursuant to CPLR 4401 for judgment as a matter of law is granted and the complaint is dismissed. We do not reach defendant's remaining contentions.
Golia, J.P., Pesce and Rios, JJ., concur.