Opinion
CA 03-01867.
Decided April 30, 2004.
Appeals from a judgment of the Supreme Court, Niagara County (Joseph D. Mintz, J.), entered June 3, 2003. The judgment was entered, upon a jury verdict, in favor of plaintiff Gerald L. Stevens against defendants in a personal injury action.
SLIWA LANE, BUFFALO (STANLEY J. SLIWA OF COUNSEL), FOR DEFENDANT-APPELLANT GRACE A. MAIMONE.
BOUVIER, O'CONNOR, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR DEFENDANT-APPELLANT GEORGE A. NEWMAN, JR.
WALSH, ROBERTS GRACE, BUFFALO (GERALD GRACE, JR., OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
Before: PRESENT: PIGOTT, JR., P.J., GREEN, PINE, WISNER, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed with costs.
Memorandum: Plaintiffs commenced this action to recover damages for injuries sustained by Gerald L. Stevens (plaintiff) in a three-vehicle accident on Interstate 190. Supreme Court properly denied the motion of defendant Grace A. Maimone for judgment as a matter of law pursuant to CPLR 4401 based on her contention that she is not liable because her conduct was not a proximate cause of the accident. "A motion for judgment as a matter of law should be granted only if, upon viewing the evidence in the light most favorable to the nonmoving party, the trial court finds that 'there is no rational process by which the [trier of fact] could base a finding in favor of the nonmoving party'" ( Sauer v. Diaz, 300 A.D.2d 1136, 1136, quoting Szczerbiak v. Pilat, 90 N.Y.2d 553, 556). Here, there is a rational process by which the jury could have found that Maimone was negligent in stopping in the right travel lane of the interstate highway and that her "negligence was a substantial cause of the events which produced the injury" ( Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, rearg denied 52 N.Y.2d 784; see also Betancourt v. Manhattan Ford Lincoln Mercury, 195 A.D.2d 246, 249-250, appeal dismissed 84 N.Y.2d 932). The court properly instructed the jury with respect to proximate cause ( see PJI3d 2:70) and denied Maimone's request to charge with respect to proximate cause. A fair interpretation of the evidence supports the jury's apportionment of fault among the parties ( see Murphy v. Columbia Univ., 4 A.D.3d 200), and thus the court properly denied the motion of defendant George A. Newman, Jr. to set aside the verdict on liability as against the weight of the evidence. We reject Newman's contention that the award of damages for past and future pain and suffering and future lost wages deviates materially from what would be reasonable compensation ( see CPLR 5501 [c]; Strangio v. New York Power Auth. [appeal No. 2], 275 A.D.2d 945, 946; Barrowman v. Niagara Mohawk Power Corp., 252 A.D.2d 946, 948, lv denied 92 N.Y.2d 817).
Finally, we reject the contentions of both defendants that the court erred in granting plaintiffs' motion seeking a directed verdict on the issue whether plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d) ( see Harwood v. Hinds, 295 A.D.2d 949; Hackett v. Driver, 278 A.D.2d 914). The uncontroverted testimony of plaintiff and plaintiffs' medical expert was sufficient to permit the court to determine as a matter of law that plaintiff's back injuries have resulted in a permanent consequential limitation of use of a body organ or member and a significant limitation of use of a body function or system ( see § 5102 [d]; Chin v. Kaplan, 280 A.D.2d 892).