Calafiore v. Kiley

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: <P>Kane, J.</P&gt
• Citation: Calafiore v. Kiley, 303 AD2d 816, 756 N.Y.S.2d 348 (N.Y. App. Div. 2003)
• Decision Date: 06 March 2003
• Parties: RITA P. CALAFIORE et al., Respondents,<BR>v.<BR>TIMOTHY KILEY et al., Appellants. (And Another Related Action.)

303 A.D.2d 816

756 N.Y.S.2d 348

RITA P. CALAFIORE et al., Respondents,

v.TIMOTHY KILEY et al., Appellants. (And Another Related Action.)

Kane, J.

Decided March 6, 2003.

Cardona, P.J., Mercure, Spain and Carpinello, JJ., concur.

Kane, J.

Plaintiff Rita P. Calafiore (hereinafter plaintiff) and her husband, derivatively, commenced this personal injury action seeking damages for injuries resulting from a May 29, 1997 accident wherein her vehicle was struck from behind by a vehicle operated by defendant Timothy Kiley. Minor damage was sustained by the vehicles. The key issue presented at trial was whether plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d). After the close of proof, plaintiffs moved for a directed verdict on the 90/180 category of serious injury (see Insurance Law § 5102 [d]). Supreme Court reserved decision on the motion and the case was presented to the jury on the issues of negligence, along with the permanent consequential limitation of use, significant limitation of use and the 90/180 categories of serious injury. The jury concluded that plaintiff did not sustain a serious injury under any of the categories and, therefore, the negligence issue was not reached. Plaintiffs moved to set aside the verdict on the 90/180 category as against the weight of the evidence. Plaintiffs also renewed their prior motion for a directed verdict. Supreme Court granted plaintiffs' renewed motion for a directed verdict pursuant to CPLR 4401 on the 90/180 issue and ordered a new trial on the issues of negligence and damages, resulting in this appeal.

It is important to note that "a motion for a directed verdict is appropriate only `where, based on the evidence presented, there is no rational process by which a jury could find for the nonmoving party'" (Cross v Finch Pruyn & Co., 281 AD2d 836, 836 [2001]). The party opposing the motion must be afforded the benefit of "every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant" (Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]). Notably, such a motion "should be denied where different inferences may be drawn from undisputed facts, or where the facts in a case are in dispute, or where an issue depends upon the credibility of witnesses" (8A Carmody-Wait 2d, NY Prac § 59:26; see Fenton v Ives, 229 AD2d 704, 705 [1996]). Applying these standards to the record herein, we find that it was not proper to direct a verdict in plaintiffs' favor.

To prevail under the 90/180 category, a plaintiff must demonstrate through competent, objective proof, a "`medically determined injury or impairment of a non-permanent nature' (Insurance Law § 5102 [d]) which would have caused the alleged limitations on the plaintiff's daily activities" during the relevant period (Monk v Dupuis, 287 AD2d 187, 191 [2001]). Furthermore, the limitation of the plaintiff's activities must be "to a great extent rather than some slight curtailment" (Licari v Elliott, 57 NY2d 230, 236 [1982]; see Sands v Stark, 299 AD2d 642 [2002]).

Turning to the evidence, plaintiff, a homemaker, testified that, subsequent to the accident she could no longer drive, clean house, babysit her grandchildren or take long walks for exercise. Although plaintiff acknowledged that she indicated on a form filled out after the accident that she had prior chiropractic care, she contended that was a mistake and denied previously seeing a chiropractor or having any prior problems with her neck or shoulders. Plaintiff did admit, however, that some of her difficulties when walking were related to a lower back problem not caused by the accident. She also testified that she had surgery for sinus problems prior to the accident and bunion surgery two years after.

Edward Kinum, a chiropractor who began treating plaintiff after the accident, diagnosed her with, inter alia, acute cervical sprain/strain. His examinations noted the presence of muscle spasms in plaintiff's neck and shoulders. Kinum testified that the June 2, 1997 X ray of plaintiff's cervical spine showed the existence of an "old," unexplained fracture and also preexisting osteophytic spurring and mild degenerative changes unrelated to the accident. Although Kinum testified in plaintiff's favor as to the permanent consequential and significant limitation of use categories, he did not render an opinion as to the 90/180 category or testify specifically as to matters relevant to that inquiry, such as restrictions placed upon plaintiff during the...