Hackett v. Driver

Appellate Division of the Supreme Court of New York

Hackett v. Driver

278 A.D.2d 914, 718 N.Y.S.2d 553, 2000 N.Y. App. Div. LEXIS 13600

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 27, 2000

StatusPublished

Cited by4 cases

This text of 278 A.D.2d 914 (Hackett v. Driver) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hackett v. Driver, 278 A.D.2d 914, 718 N.Y.S.2d 553, 2000 N.Y. App. Div. LEXIS 13600 (N.Y. Ct. App. 2000).

Pincite

Opinion

Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted that part of plaintiffs motion at the close of proof seeking a directed verdict on the issue of liability. Contrary to defendant’s contention, there is no evidence that plaintiff could have taken any action to avoid the collision (cf., Damerau v Johnson, 265 AD2d 927). The court also properly granted that part of plaintiffs motion seeking a directed verdict on the issue of serious injury (see, Insurance Law § 5102 [d]). Defendant contends that his expert did not concede that plaintiffs shoulder injury was permanent or significant. We disagree. Although defendant’s expert testified that further surgery could restore the range of motion of plaintiffs shoulder, he further testified that plaintiffs “impingement syndrome” is a painful condition that is permanent. He testified that plaintiff has a “mild, partial disability” and described that disability as a “significant limitation on the use of [plaintiffs] arm.” “Permanent loss does not require proof of a total loss of an organ, member or function, [915]*915but only proof that it operates in some limited way or operates only with persistent pain” (Countermine v Galka, 189 AD2d 1043, 1045; see, Paolini v Sienkiewicz, 262 AD2d 1020; Ottavio v Moore, 141 AD2d 806, 807, lv denied 73 NY2d 704). Thus, there was no difference of opinion among the parties’ medical experts with respect to permanency, and the court properly determined as a matter of law that plaintiff sustained a serious injury. Finally, defendant’s contention that there was evidence that plaintiffs shoulder injury was not related to the accident is not preserved for our review. (Appeal from Order of Supreme Court, Cattaraugus County, Cosgrove, J. — Directed Verdict.) Present — Pine, J. P., Hayes, Wisner and Lawton, JJ.

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Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted that part of plaintiffs motion at the close of proof seeking a directed verdict on the issue of liability. Contrary to defendant’s contention, there is no evidence that plaintiff could have taken any action to avoid the collision (cf., Damerau v Johnson, 265 AD2d 927). The court also properly granted that part of plaintiffs motion seeking a directed verdict on the issue of serious injury (see, Insurance Law § 5102 [d]). Defendant contends that his expert did not concede that plaintiffs shoulder injury was permanent or significant. We disagree. Although defendant’s expert testified that further surgery could restore the range of motion of plaintiffs shoulder, he further testified that plaintiffs “impingement syndrome” is a painful condition that is permanent. He testified that plaintiff has a “mild, partial disability” and described that disability as a “significant limitation on the use of [plaintiffs] arm.” “Permanent loss does not require proof of a total loss of an organ, member or function, [915]*915but only proof that it operates in some limited way or operates only with persistent pain” (Countermine v Galka, 189 AD2d 1043, 1045; see, Paolini v Sienkiewicz, 262 AD2d 1020; Ottavio v Moore, 141 AD2d 806, 807, lv denied 73 NY2d 704). Thus, there was no difference of opinion among the parties’ medical experts with respect to permanency, and the court properly determined as a matter of law that plaintiff sustained a serious injury. Finally, defendant’s contention that there was evidence that plaintiffs shoulder injury was not related to the accident is not preserved for our review. (Appeal from Order of Supreme Court, Cattaraugus County, Cosgrove, J. — Directed Verdict.) Present — Pine, J. P., Hayes, Wisner and Lawton, JJ.

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Bluebook (online)

278 A.D.2d 914, 718 N.Y.S.2d 553, 2000 N.Y. App. Div. LEXIS 13600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hackett-v-driver-nyappdiv-2000.

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