Frank v Gengler, 2017 NY Slip Op 04423 (2d Dept. 2017)
“Here, the Supreme Court erred in determining that the jury verdict in favor of the defendant was not supported by legally sufficient evidence. The evidence presented at trial included photographic evidence and witness testimony indicating the relatively minor nature of the motor vehicle accident, and expert testimony presented by the defendant indicating that the plaintiff’s alleged injuries were solely the result of degenerative processes and were not caused by traumatic injury. Contrary to the court’s conclusion, on the basis of the evidence presented at trial, there was a valid line of reasoning by which the jury could conclude that the motor vehicle accident was not a substantial factor in causing the injuries allegedly sustained by the plaintiff (see Wilson v Philie, 107 AD3d 700, 701; Rubino v Scherrer, 68 AD3d 1090, 1092; cf. Jilani v Palmer, 83 AD3d 786, 787; see generally Imbrey v Prudential Ins. Co., 286 NY 434, 440). Accordingly, the court, upon reargument, should have adhered to its prior denial of that branch of the plaintiff’ motion which was pursuant to CPLR 4404(a) to set aside the jury verdict in favor of the defendant and for judgment as a matter of law.”
Personally, I think this case has huge repercussions. Never have I seen a court lay out such a simple road-map for getting to a determination of lack of causation between the accident and injury. It is the same thought process, regardless of whether we are litigating first-party lack of causation of third-party causation,
2 Responses
I wouLdn’t read too much into this. This is a jury override case, wheRe the burden is really high. The app court is just saying that the jury had a rational basis based on the evidence, like an arb award.
Which would mean there’s a rational basis to make this finding? You still have to prove this defense, which in a first-party case will be difficult based upon evidentiary issues and quality of witness issues. Also, a first party claimant may make injury claims to neck, back, knee and shoulder. A Bi third-party claim may only claim a 5102(d) injury on the knee and the other body parts would be pass throughs once threshold is met. The third-party claim, however, would only have to disprove one body part; the first-party claimant would have to disprove all of the body parts to win.
This case is more apt on an extremity surgery – that’s where the industry is feeling the most pain – no pun intended. I do not think there will be much luck on the conservative modality claims so you will not be impacted on your day to day Kings County practice.