Cizek v. Aberbach

277 A.D.2d 416, 715 N.Y.S.2d 909, 2000 N.Y. App. Div. LEXIS 12320

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 27, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendant appeals from a judgment of the Supreme Court, Nassau County (Galasso, J.), dated August 3, 1999, which, upon a jury verdict, inter alia, finding him 65% at fault in the happening of the accident and finding that the plaintiffs suffered total damages in the amount of $101,000, is in favor of the plaintiffs and against him in the principal sum of $65,650.

Ordered that the judgment is reversed, on the law, with costs, and the complaint is dismissed.

The infant plaintiff was allegedly injured when she was hit by a car driven by the defendant as she was crossing a two-lane road. The trial testimony failed to adduce any evidence that the defendant operated his vehicle in a negligent manner, and for that reason the plaintiffs failed to establish a prima facie case of negligence (cf., Miller v Sisters of Order of St. Dominic, 262 AD2d 373).

Were we not reversing on the ground of liability, we would reverse the judgment for the plaintiffs’ failure to establish that the infant plaintiff suffered a serious injury within the meaning of Insurance Law § 5102 (d). Though the infant plaintiff claimed that she suffered “permanent consequential limitation of use” and “significant limitation of use” (Insurance Law § 5102 [d]), of her right knee, the medical evidence proffered by her doctor failed to quantify or objectively measure the extent of the limitation (see, McHaffie v Antieri, 190 AD2d 780). Bracken, J. P., McGinity, Luciano and Feuerstein, JJ., concur.