Candia v. Omonia Cab Corporation

• Decision Date: 26 April 2004
• Docket Number: 2003-02647.
• Citation: 6 A.D.3d 641,2004 NY Slip Op 03074,775 N.Y.S.2d 546
• Parties: MARTIN CANDIA, Respondent, v. OMONIA CAB CORPORATION et al., Appellants.
• Court: New York Supreme Court — Appellate Division

6 A.D.3d 641

775 N.Y.S.2d 546

2004 NY Slip Op 03074

MARTIN CANDIA, Respondent, v. OMONIA CAB CORPORATION et al., Appellants.

2003-02647.

Appellate Division of the Supreme Court of the State of New York, Second Department.

April 26, 2004.

In an action to recover damages for personal injuries, the defendant David O. Correia appeals, and the defendants Omonia Cab Corporation and Alexandre Gabarev separately appeal, from a judgment of the Supreme Court, Kings County (Held, J.), entered March 12, 2003, which, upon a jury verdict on the issue of liability finding the defendant David O. Correia 90% at fault in the happening of the accident and the defendants Omonia

Cab Corporation and Alexandre Gabarev 10% at fault in the happening of the accident, and upon a jury verdict on the issue of damages awarding the plaintiff damages in the sums of $75,000 for past pain and suffering and $250,000 for future pain and suffering, is in favor of the plaintiff and against them in the principal sum of $325,000.

Ordered that the judgment is reversed, on the law, with one bill of costs to the appellants appearing separately and filing separate briefs, and the complaint is dismissed.

The plaintiff brought this action to recover damages for personal injuries which he allegedly sustained in a rear-end collision involving his vehicle, a vehicle owned and operated by the defendant David O. Correia, and a vehicle owned by the defendant Omonia Cab Corporation (hereinafter Omonia) and operated by the defendant Alexandre Gabarev. At trial, the plaintiff presented evidence that he injured his cervical spine and lumbar spine in the accident. The jury returned a verdict finding that Correia, and Omonia and Gabarev, were negligent and that their negligence was a proximate cause of the accident. The verdict apportioned fault 90% to Correia and 10% to Omonia and Gabarev. The jury also concluded that the plaintiff sustained a permanent loss of use of a body organ, member, function, or system, and awarded him damages. A judgment was entered in favor of the plaintiff. On appeals by Correia, and Omonia and Gabarev, we reverse the judgment and dismiss the complaint.

At trial, the plaintiff failed to establish a prima facie case that he sustained a permanent loss of use of a body organ, member, function, or system, since he did not suffer a total loss of use of his cervical spine or lumbar spine (see Oberly v Bangs Ambulance, 96 NY2d 295, 299 [2001]). Further, the plaintiff failed to establish a prima...