Countermine v. Galka

• Decision Date: 28 January 1993
• Citation: 189 A.D.2d 1043,593 N.Y.S.2d 113
• Parties: Edward COUNTERMINE, Respondent-Appellant, v. Carol A. GALKA et al., Appellants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 113

593 N.Y.S.2d 113

189 A.D.2d 1043

Edward COUNTERMINE, Respondent-Appellant, v. Carol A. GALKA et al., Appellants-Respondents.

Supreme Court, Appellate Division Third Department.

Jan. 28, 1993.

Stephen R. Spring (Mark P. Donohue, of counsel), Albany, for appellants-respondents.

Pemberton and Briggs (Paul Briggs, of counsel), Schenectady, for respondent-appellant.

Before WEISS, P.J., and LEVINE, MAHONEY, CASEY and HARVEY, JJ.

LEVINE, Justice.

Cross appeals from a judgment of the Supreme Court (Conway, J.), entered February 11, 1992 in Albany County, upon a verdict rendered in favor of plaintiff.

The accident out of which this action arose took place in February 1990 when plaintiff's vehicle was stopped at a red light on Western Avenue in the City of Albany and was struck in the rear by a vehicle owned by defendant Edward Kruczynski and driven by defendant Carol A. Galka. Plaintiff thereafter commenced this negligence action against defendants seeking recovery for personal injuries sustained as a result of the collision.

At the close of the proof, Supreme Court granted plaintiff's motion for a directed verdict as to defendants' negligence but denied the motion as to the issue of whether plaintiff sustained a serious injury (see, Insurance Law § 5102[d]. On the issue of serious injury, the jury found that plaintiff had sustained permanent consequential limitation of use of a body organ or member. ¹ The jury awarded plaintiff $140,000, $15,000 for his pain and suffering until the date of verdict and $125,000 for future pain and suffering. Supreme Court denied defendants' motion to set aside the verdict as against the weight of the evidence, as well as plaintiff's similar motion to set aside the jury's determination that plaintiff had not satisfied the other claimed categories of serious injury.

On appeal, defendants contend that Supreme Court erred in directing a verdict against them on the issue of liability, that the jury's determination that plaintiff sustained permanent consequential limitation of use of a body organ or member is against the weight of evidence, and that the verdict deviates materially from what would be reasonable compensation.

From our examination of the record, we conclude that Supreme Court properly directed a verdict against defendants on the issue of liability. Absent a sufficient excuse, if a stopped vehicle is hit in the rear it is negligence as a matter of law (see, Cohen v. Terranella, 112 A.D.2d 264, 491 N.Y.S.2d 711; see also, DeAngelis v. Kirschner, 171 A.D.2d 593, 594, 567 N.Y.S.2d 457; Benyarko v. Avis Rent A Car Sys., 162 A.D.2d 572, 573, 556 N.Y.S.2d 761; Daliendo v. Johnson, 147 A.D.2d 312, 321, 543 N.Y.S.2d 987; Silberman v. Surrey Cadillac Limousine Serv., 109 A.D.2d 833, 486 N.Y.S.2d 357).

Galka testified that she was traveling 30 miles per hour and looked up once prior to the accident and observed a green light ahead. She was about one car length behind plaintiff when she noticed his brake lights and his car begin to slow for traffic. She looked at the traffic light again, but was unable to see it because of the sun. She looked ahead and saw that plaintiff's car was stopped, so she slammed on her brakes but was unable to stop in time. We find Galka's testimony insufficient to rebut the inference of negligence or to raise a triable issue of fact as to liability (see, Benyarko v. Avis Rent A Car Sys., supra, 162 A.D.2d at 573, 556 N.Y.S.2d 761; see also, DeAngelis v. Kirschner, supra, 171 A.D.2d at 594, 567 N.Y.S.2d 457), as under these facts Galka's claimed excuse is not an "adequate, nonnegligent explanation" (Silberman v. Surrey Cadillac Limousine Serv., supra, 109 A.D.2d at 833, 486 N.Y.S.2d 357). The testimony as a whole "strongly suggests that [Galka] failed in the exercise of her duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident" (DeAngelis v. Kirschner, supra, 171 A.D.2d at 595, 567 N.Y.S.2d 457).

As to the jury's finding of serious injury, viewing the evidence as we must in the light most favorable to the party prevailing at trial, the finding that plaintiff sustained a permanent consequential limitation of use of a body organ or member is not against the weight of the evidence (see, Matter of Kornblum Metals Co. v. Intsel Corp., 38 N.Y.2d 376, 379, 379 N.Y.S.2d 826, 342 N.E.2d 591). A jury's verdict may be set aside as against the weight of the evidence "only where the evidence preponderates so greatly in the movant's favor that the jury could not have reached its conclusion on any fair interpretation of the evidence" (Schoch v. Dougherty, 122 A.D.2d 467, 468, 504 N.Y.S.2d 855, lv. denied 69 N.Y.2d 605, 513 N.Y.S.2d 1026, 505 N.E.2d 953; see, Linton v. Nieves, 175 A.D.2d 550, 551, 572 N.Y.S.2d 806; Holbrook v. Jamesway Corp., 172 A.D.2d 910, 911, 568 N.Y.S.2d 198; Schnarch v. Owen, 124 A.D.2d 372, 373, 507 N.Y.S.2d 315). Conflicting opinions of medical experts merely create a credibility question for the jury to resolve (see, Holbrook v. Jamesway Corp., supra, 172 A.D.2d at 911, 568 N.Y.S.2d 198).

In order to establish a permanent consequential limitation of use of a body member or function, plaintiff had to prove that his injury was both consequential and permanent. "Consequential" means important or significant (see, Kordana v. Pomellito, 121 A.D.2d 783, 784, 503 N.Y.S.2d 198, appeal dismissed 68 N.Y.2d 848, 508 N.Y.S.2d 425, 501 N.E.2d 33; Dwyer v. Tracey, 105 A.D.2d 476, 478, 480 N.Y.S.2d 781). Permanent loss does not require proof of a total loss of an organ, member or function, but only proof that it operates in some limited way or operates only with persistent pain (see, Bassett v. Romano, 126 A.D.2d 693, 694, 511 N.Y.S.2d 298; Dwyer v. Tracey, supra, 105 A.D.2d at 477, 480 N.Y.S.2d 781; Mooney v. Ovitt, 100 A.D.2d 702, 703, 474 N.Y.S.2d 618).

Both orthopedic surgeons called by plaintiff as witnesses testified that plaintiff suffered a torn rotator cuff in his right shoulder as a result of the accident, leaving plaintiff with residual permanent "adhesive capsulitis" limiting plaintiff's ability to move his right arm without pain....