Warner v. Kain

• Decision Date: 24 September 2020
• Docket Number: 529488
• Citation: 186 A.D.3d 1844,131 N.Y.S.3d 726
• Parties: Lowell T. WARNER et al., Appellants, v. Kyle E. KAIN et al., Respondents.
• Court: New York Supreme Court — Appellate Division

186 A.D.3d 1844
131 N.Y.S.3d 726

Lowell T. WARNER et al., Appellants,
v.
Kyle E. KAIN et al., Respondents.

529488

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

Calendar Date: August 19, 2020
Decided and Entered: September 24, 2020

131 N.Y.S.3d 728

The Mills Law Firm LLP, Clifton Park (Christopher K. Mills of counsel), for appellants.

Law Office of J. William Savage, East Syracuse (Joseph William Savage of counsel) and James G. Bilello & Associates, Hicksville (Susan J. Mitola of counsel), for respondents.

Before: Egan Jr., J.P., Clark, Mulvey, Devine and Pritzker, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeals (1) from a judgment of the Supreme Court (Richards, J.), entered March 7, 2019 in St. Lawrence County, upon a verdict rendered in favor of defendants, and (2) from an order of said court, entered February 28, 2019 in St. Lawrence County, which denied plaintiffs' motion to set aside the verdict.

In June 2012, defendant Kyle E. Kain (hereinafter Kain) was operating a vehicle owned by defendant John E. Kain when Kain collided into the rear of a vehicle stopped at a red light. The impact of that collision forced the stopped vehicle to collide with the car in front of it, which was operated by plaintiff Lowell T. Warner. Warner and his wife, derivatively, commenced this action seeking to recover for injuries he allegedly sustained during the accident. Defendants conceded negligence, and the matter proceeded to a jury trial on the issues of causation and whether Warner sustained a serious injury under Insurance Law § 5102(d), and, if so, the amount

131 N.Y.S.3d 729

of damages to be awarded. The jury rendered a verdict in favor of defendants, finding that Warner did not sustain a serious injury. Plaintiffs moved to set aside the verdict, which Supreme Court denied. The court then entered a judgment upon the verdict in favor of defendants. Plaintiffs appeal from the judgment and the order denying their postverdict motion.

Plaintiffs contend that Supreme Court erred in denying their motion to set aside the jury verdict. Under CPLR 4404(a), "the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence." In order to award a judgment as a matter of law, the moving party must establish "that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [jurors] to the conclusion reached by the jury on the basis of the evidence presented at trial" ( Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145 [1978] ; accord Matter of Fraccaro, 161 A.D.3d 1275, 1276, 77 N.Y.S.3d 167 [2018], lv denied 32 N.Y.3d 911, 2018 WL 6540816 [2018] ). To set aside a verdict as against the weight of the evidence, "the evidence [must] so preponderate[ ] in favor of the moving party that it could not have been reached on any fair interpretation of the evidence" ( Killon v. Parrotta, 28 N.Y.3d 101, 107, 42 N.Y.S.3d 70, 65 N.E.3d 41 [2016] [internal quotation marks, brackets and citations omitted]; see Towne v. Kingsley, 163 A.D.3d 1309, 1310, 82 N.Y.S.3d 636 [2018] ). "It is not enough to show that a different verdict would be reasonable since the jury's verdict will be accorded deference if credible evidence exists to support its interpretation" ( Fallon v. Esposito, 35 A.D.3d 1067, 1068, 826 N.Y.S.2d 802 [2006] [internal quotation marks and citations omitted]; accord Maksuta v. Heitzman, 165 A.D.3d 1550, 1551, 86 N.Y.S.3d 772 [2018] ).

Serious injury within the meaning of the Insurance Law includes, as relevant here, "a fracture; ... permanent consequential limitation of use of a body organ or member; [or] significant limitation of use of a body function or system" ( Insurance Law § 5102[d] ). When a plaintiff relies upon the permanent consequential limitation and/or significant limitation of use categories, such claims must be grounded upon "objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing [the] plaintiff's present limitations to the normal function, purpose and use of the affected body organ, member, function or system" ( Raucci v. Hester, 119 A.D.3d 1044, 1045–1046, 989 N.Y.S.2d 164 [2014] [internal quotation marks and citations omitted]; accord Davis v. Cottrell, 101 A.D.3d 1300, 1301, 956 N.Y.S.2d 248 [2012] ). Additionally, "[t]he curtailment of [a] plaintiff's daily activities must be to a great extent rather than some slight curtailment" ( Baker v. Thorpe, 43 A.D.3d 535, 537, 840 N.Y.S.2d 834 [2007] [internal quotation marks and citation omitted] ).

At trial, plaintiffs' case relied predominantly on Warner's testimony, medical records and the expert testimony of Douglas Kirkpatrick, an orthopedic surgeon who conducted an independent medical examination (hereinafter IME) of Warner. Warner described the accident, his subsequent medical treatment and the impact that the injury had on his usual daily activities. As to the accident itself, Warner testified that damage to his vehicle was estimated to be $1,100 and that, after the accident, he drove himself to the hospital, where X rays were taken; the X rays did not disclose any injury. Several weeks later, he sought treatment and was referred to physical

131 N.Y.S.3d 730

therapy, which he attended for about six months, and he thereafter received chiropractic treatment for three years. Warner also testified that, because of the accident, he can no longer ski and snowboard and that, prior to the accident, he played golf five to six times a week, but now he is limited to just once a week with friends. Additionally,...