Grotzer v. Levy

• Decision Date: 03 August 1987
• Citation: 518 N.Y.S.2d 629,133 A.D.2d 67
• Parties: Erika GROTZER, Respondent, v. Melissa LEVY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 629

518 N.Y.S.2d 629

133 A.D.2d 67

Erika GROTZER, Respondent, v. Melissa LEVY, Appellant.

Supreme Court, Appellate Division Second Department.

Aug. 3, 1987.

Peter J. Hersha, Goshen (Thomas N. O'Hara, P.C., of counsel), for appellant.

MacKenna, Coulter & Polhemus, Poughkeepsie (Robert A. MacKenna, of counsel), for respondent.

Before MOLLEN, P.J., and BROWN, WEINSTEIN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries sustained in an automobile accident the defendant appeals fr (1) an order of the Supreme Court, Dutchess County (Beisner, J.), dated April 15, 1986, which ordered a new trial on the issue of damages unless the plaintiff stipulated to decrease the amount of the verdict from $175,000 to $100,000, and (2) a judgment of the same court, entered April 21, 1986, upon the plaintiff's stipulation, which is in favor of the plaintiff and against her in the principal sum of $100,000.

ORDERED that the appeal from the order is dismissed; and, it is further,

ORDERED that the judgment is reversed, on the law, and the complaint is dismissed; and it is further,

ORDERED that the defendant is awarded one bill of costs.

The appeal from the intermediate order 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, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501[a][1] ).

We find that the plaintiff failed, as a matter of law, to prove that she suffered a serious injury within the meaning of Insurance Law § 5102(d).

While the plaintiff may have proved that she has suffered some restriction in the motion of her neck or lower back as the result of this accident, she failed to prove that such restriction constitutes a significant limitation of use of a body organ or member (see, Insurance Law § 5102[d]; Licari v. Elliott, 57 N.Y.2d 230, 239, 455 N.Y.S.2d 570, 441 N.E.2d 1088; Nolan v. Ford, 100 A.D.2d 579, 473 N.Y.S.2d 516, affd. 64 N.Y.2d 681, 485 N.Y.S.2d 526, 474 N.E.2d 1194; Hezekiah v. Williams, 81 A.D.2d 261, 440 N.Y.S.2d 274; cf., Lopez v. Senatore, 65 N.Y.2d 1017, 494 N.Y.S.2d 101, 484 N.E.2d 130, revg. 97 A.D.2d 787, 468 N.Y.S.2d 527). The plaintiff's expert's opinion on this score was nothing more than "[a] conclusory assertion ... tailored to meet statutory requirements" (Lopez v. Senatore, supra, at 1019, 494 N.Y.S.2d 101, 484 N.E.2d 130).

Furthermore, since the plaintiff returned to work within one month of the accident it is clear that her injury did not prevent her from "performing substantially all of the material acts which constitute [her] usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury" (Insurance Law § 5102[d]; see, Licari v. Elliott, supra; De Filippo v. White, 101 A.D.2d 801, 475 N.Y.S.2d 141...