Opinion
2001-10843
November 26, 2002.
December 23, 2002.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Held, J.), entered November 27, 2001, which, upon the granting of the separate motions of the defendants General Electric Cap Auto and L. Peter Stavropoulos and the defendants Edwin Rodriguez and Davita Labrado pursuant to CPLR 4404(a) to set aside a jury verdict in favor of the plaintiff and to dismiss the complaint for failure to establish a prima facie case, dismissed the complaint.
Bruce S. Reznick, P.C. (Pollack, Pollack, Isaac De Cicco, New York, N.Y. [Brian J. Isaac] of counsel), for appellant.
Saretsky Katz Dranoff Glass, LLP, New York, N.Y. (Howard J. Newman of counsel), for respondents General Electric Cap Auto and L. Peter Stavropoulos.
Composto Fitzgerald, Brooklyn, N.Y. (Lana Kaganovsky of counsel), for respondents Edwin Rodriguez and Davita Labrado.
Before: DAVID S. RITTER, J.P., WILLIAM D. FRIEDMANN, DANIEL F. LUCIANO, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, with one bill of costs.
Contrary to the plaintiff's contention, the trial court correctly granted the defendants' respective motions pursuant to CPLR 4404(a) to set aside the jury verdict in favor of the plaintiff finding that he had sustained a medically-determined injury which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment (see Insurance Law § 5102[d]). Based on the evidence presented by the plaintiff at trial, no rational jury could have found for the plaintiff on this issue (see Krakofsky v. Fox-Rizzi, 273 A.D.2d 277, 278; Lyons v. McCauley, 252 A.D.2d 516; O'Brien v. Covert, 187 A.D.2d 419, 420). The plaintiff's evidence at trial failed to establish a prima facie case that he was curtailed from performing his usual activities to a great extent during 90 out of the first 180 days immediately following the subject accident (see Licari v. Elliott, 57 N.Y.2d 230, 236; Randazzo v. Morris, 269 A.D.2d 513, 514; Hausman v. Gourville, 248 A.D.2d 674; DiPalma v. Villa, 237 A.D.2d 323; Lichtman-Williams v. Desmond, 202 A.D.2d 646; Baker v. Zelem, 202 A.D.2d 617, 618). At trial, the plaintiff "did not detail or even outline in a general fashion [his] inability to perform substantially all of [his] customary daily activities" (Lebreton v. New York City Tr. Auth., 267 A.D.2d 211, 213).
RITTER, J.P., FRIEDMANN, LUCIANO and H. MILLER, JJ., concur.