Elshaarawy v. U-Haul Co. of Miss.

• Decision Date: 20 April 2010
• Citation: 900 N.Y.S.2d 321,72 A.D.3d 878
• Parties: Sherif ELSHAARAWY, respondent, v. U-HAUL CO. OF MISSISSIPPI, et al., appellants, et al., defendant.
• Court: New York Supreme Court — Appellate Division

900 N.Y.S.2d 321

72 A.D.3d 878

Sherif ELSHAARAWY, respondent,

v.U-HAUL CO. OF MISSISSIPPI, et al., appellants, et al., defendant.

Supreme Court, Appellate Division, Second Department, New York.

April 20, 2010.

Mayer Brown LLP, New York, N.Y. (Andrew H. Schapiro and Christopher J. Houpt of counsel), for appellants.

Wittenstein & Associates, P.C., Brooklyn, N.Y. (Harlan Wittenstein of counsel), for respondent.

REINALDO E. RIVERA, J.P., RANDALL T. ENG, CHERYL E. CHAMBERS, and L. PRISCILLA HALL, JJ.

In a consolidated action to recover damages for personal injuries, the defendants U-Haul Co. of Mississippi, Jeffrey Cranford, U-Haul Company of Arizona, and Amanda Cranfordappeal from (1) an order of the Supreme Court, Kings County (F. Rivera, J.), entered April 15, 2008, which denied their motion pursuant to CPLR 4404(a) to set aside a jury verdict on the issue of damages and for a new trial on the issue of damages, and (2) a judgment of the same court entered October 20, 2008, which upon the order entered April 15, 2008, and upon an order of the same court (Johnson, J.), dated January 4, 2007, granting the plaintiff's motion for summary judgment on the issue of serious injury to his right knee, is in favor of the plaintiff and against them in the principal sum of $984,374.45, representing the net present value of the damages awards plus interest from June 15, 2006, to October 20, 2008.

ORDERED that the appeal from the order entered April 15, 2008, is dismissed; and it is further,

ORDERED that the judgment is reversed, on the law, the plaintiff's motion for summary judgment on the issue of serious injury to his right knee is denied, the order dated January 4, 2007, is modified accordingly, the order entered April 15, 2008, is vacated, and the matter is remitted to the Supreme Court, KingsCounty, for a new trial on the issue of damages; and it is further,

ORDERED that one bill of costs is awarded to the appellants.

The appeal from the intermediate order entered April 15, 2008, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from that order are brought up for review and have been considered on the appeal from the judgment ( see CPLR 5501[a][1] ).

On July 8, 2004, the plaintiff parked his car near the intersection of 77th Street and 6th Avenue in Brooklyn, exited the vehicle, and opened the rear passenger door to retrieve a tool box from the back seat. As the plaintiff was pulling the tool box out of his car, a rented U-Haul van operated by the defendant Jeffrey Cranford made a right turn onto 77th Street, and struck the plaintiff's car in the rear. The impact pushed the plaintiff's vehicle forward, and the right rear tire of the car ran over the plaintiff's right foot. According to the plaintiff, the sudden movement of his vehicle also caused him to lose his balance and fall back, hitting his head on the sidewalk and twisting his knee. The plaintiff alleges that, as a result of the accident, he sustained injuries to his right knee, back, neck, and head. Approximately four months later, the plaintiff underwent arthroscopic surgery on his right knee, which revealed that he had sustained a tear of the lateral meniscus, and a tear of the anterior cruciate ligament. A second surgical procedure was performed on the plaintiff's right knee on December 14, 2004.

The plaintiff commenced one action against U-Haul Co. of Mississippi and Jeffrey Cranford, and a second action against, among others, U-Haul Company of Arizona and Amanda Cranford (hereinafter collectively the defendants). After the two actions were consolidated, the plaintiff moved for summary judgment on the issue of liability, and the Supreme Court granted his motion. The plaintiff subsequently moved for summary judgment on the issue of serious injury to his right knee under the 90/180 day category of Insurance Law § 5102(d). In an order dated January 4, 2007, the Supreme Court granted the plaintiff's motion.

At the ensuing trial on the issue of damages, the plaintiff presented evidence regarding the injuries to his right knee, as well as additional injuries to his head and the cervical and lumbar regions of his spine.

In accordance with the order dated January 4, 2007, the jury was instructed that "[t]he court has already determined that plaintiff's knee injury was caused by this accident and caused an impairment, a medically determined impairment that fits this description. So, that issue is no longer before you with regard to his knee, which means that no matter what, you will have to give an award of what you consider fair and reasonable compensation for the knee injury that the court has determined was causally linked to this accident." The jury subsequently returned a verdict finding that the plaintiff sustained a medically determined injury or impairment of a nonpermanent nature to his neck, back, and/or head that prevented him from performing substantially all of his usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident, and that the accident was a substantial factor in causing these injuries. The jury further found that the plaintiff had sustained a significant limitation of use of a body function or system "as to the neck, back and/or knee," and that the accident was a substantial factor in causingthese injuries. The jury was not explicitly asked to determine which one or more of these three body functions or systems were affected by a significant limitation of use, but only to determine whether any one of them was so affected by such a significant limitation of use. The jury awarded the plaintiff the principal sums of $300,000 for past pain and suffering, $500,000 for future pain...