Vale v Floyd, 2014 NY Slip Op 51241(U)(App. Term 2d Dept. 2014)
This was a 325(d) personal injury case in Civil Queens. These are perhaps the only cases that get tried in that court nowadays. The dissent is interesting because it pretty much discusses were the Plaintiff attorney went wrong in his direct examination of the expert, i.e., failing to compare normal rom with observed rom. It also states why the dissenting justice (and I believe she is correct) would have tossed the 90/180 claim. I am curious if the Appellate Division will take it up. Assuming the dissenting Justice’s review of the record is correct, then I have to imagine this case should go up.
“I agree with defendant’s contention that, based upon the evidence presented at trial, there was no valid line of reasoning and permissible inferences which could possibly have led the jury to rationally conclude that plaintiff had sustained a serious injury under the significant limitation of use or 90/180-day categories of Insurance Law § 5102 (d) as a result of the accident in question. In order to establish that she had suffered a “significant limitation of use of a body function or system, plaintiff was required to provide objective evidence of the extent or degree of the limitation and its duration (see Laruffa v Yui Ming Lau, 32 AD3d 996 [2006]). Plaintiff’s trial evidence was insufficient to establish, prima facie, that, after the accident, the limitation of the use of her spine and left shoulder was significant in degree (see DiCariano v County of Rockland, 111 AD3d 879 [2013]). While plaintiff’s doctor testified that his testing revealed specified limitations in plaintiff’s range of motion in her spine and left shoulder, he was unable to establish what are considered normal ranges of motion with which to compare his measurements, thus leaving the jury, as finders of fact, to speculate as to the meaning of the doctor’s physical findings (see Djetoumani v Transit, Inc., 50 AD3d 944 [2008]).
Plaintiff also failed to present evidence showing that her injuries had curtailed her from performing her usual and customary activities to a great extent for the requisite period (see Parise v New York City Tr. Auth., 94 AD3d 839 [2012]). Rather, the testimony at trial established only that it had been harder for plaintiff to do certain activities with her family on the weekends and that she had experienced pain when making certain movements (see Lanzarone v Goldman, 80 AD3d 667 [2011]).”
Needless to say I have been trying a few of these soft tissue cases lately so it is something that I have some interest in – JT
