Sanchez v. Alam

Appellate Division of the Supreme Court of New York

Sanchez v. Alam

2016 NY Slip Op 7581, 144 A.D.3d 485, 41 N.Y.S.3d 33

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

DecidedNovember 15, 2016

Docket2177 307184/10

StatusPublished

Cited by1 cases

This text of 2016 NY Slip Op 7581 (Sanchez v. Alam) 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

Sanchez v. Alam, 2016 NY Slip Op 7581, 144 A.D.3d 485, 41 N.Y.S.3d 33 (N.Y. Ct. App. 2016).

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Opinion

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered on or about September 25, 2015, which granted plaintiff’s motion to set aside the jury verdict in favor of defendants and direct a new trial, unanimously reversed, on the law, without costs, and the motion denied. The Clerk is directed to enter judgment in favor of defendants.

The verdict is based on a fair interpretation of the evidence *486 (see Cohen v Hallmark Cards, 45 NY2d 493 [1978]). Although plaintiff established through the testimony and reports of his radiologist that he sustained a herniated lumbar disc as a result of the motor vehicle accident, the jury could rationally have found that he did not sustain a “permanent consequential” or “significant” limitation in the use of his lumber spine as a result of the accident (see Insurance Law § 5102 [d]). Plaintiff relied on his chiropractor’s findings of limitations during examinations conducted in February 2012 and July 2014. However, the records from plaintiffs last day of treatment for the accident, in July 2009, reflect only a minor limitation in flexion (see Licari v Elliott, 57 NY2d 230, 236 [1982]; Nakamura v Montalvo, 137 AD3d 695 [1st Dept 2016]; Dieujuste v Kiss Mgt. Corp 60 AD3d 514 [1st Dept 2009]), and plaintiff presented no proof reconciling the 2012 and 2014 findings with the 2009 findings (see Acosta v Vidal, 119 AD3d 408 [1st Dept 2014]; Colon v Torres, 106 AD3d 458 [1st Dept 2013]).

As to plaintiff’s claimed 90/180-day injury, the testimony of his chiropractor that he was disabled from work for six months is belied by the chiropractor’s own office records, and plaintiff presented no other objective medical proof in support of this claim (Toure v Avis Rent A Car Sys., 98 NY2d 345, 357-358 [2002]).

Concur—Renwick, J.P., Moskowitz, Kapnick, Kahn and Gesmer, JJ.

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Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered on or about September 25, 2015, which granted plaintiff’s motion to set aside the jury verdict in favor of defendants and direct a new trial, unanimously reversed, on the law, without costs, and the motion denied. The Clerk is directed to enter judgment in favor of defendants.

The verdict is based on a fair interpretation of the evidence *486 (see Cohen v Hallmark Cards, 45 NY2d 493 [1978]). Although plaintiff established through the testimony and reports of his radiologist that he sustained a herniated lumbar disc as a result of the motor vehicle accident, the jury could rationally have found that he did not sustain a “permanent consequential” or “significant” limitation in the use of his lumber spine as a result of the accident (see Insurance Law § 5102 [d]). Plaintiff relied on his chiropractor’s findings of limitations during examinations conducted in February 2012 and July 2014. However, the records from plaintiffs last day of treatment for the accident, in July 2009, reflect only a minor limitation in flexion (see Licari v Elliott, 57 NY2d 230, 236 [1982]; Nakamura v Montalvo, 137 AD3d 695 [1st Dept 2016]; Dieujuste v Kiss Mgt. Corp 60 AD3d 514 [1st Dept 2009]), and plaintiff presented no proof reconciling the 2012 and 2014 findings with the 2009 findings (see Acosta v Vidal, 119 AD3d 408 [1st Dept 2014]; Colon v Torres, 106 AD3d 458 [1st Dept 2013]).

As to plaintiff’s claimed 90/180-day injury, the testimony of his chiropractor that he was disabled from work for six months is belied by the chiropractor’s own office records, and plaintiff presented no other objective medical proof in support of this claim (Toure v Avis Rent A Car Sys., 98 NY2d 345, 357-358 [2002]).

Concur—Renwick, J.P., Moskowitz, Kapnick, Kahn and Gesmer, JJ.

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Bluebook (online)

2016 NY Slip Op 7581, 144 A.D.3d 485, 41 N.Y.S.3d 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sanchez-v-alam-nyappdiv-2016.

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