FEENEY v. KLOTZ

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Supreme Court, Appellate Division, Second Department, New York.

Jesse FEENEY, Respondent, v. Henry KLOTZ, Appellant.

Decided: October 14, 2003

SANDRA J. FEUERSTEIN, J.P., WILLIAM D. FRIEDMANN, LEO F. McGINITY and ROBERT W. SCHMIDT, JJ. Shapiro, Beilly, Rosenberg, Aronowitz, Levy & Fox, LLP, New York, N.Y. (Roy J. Karlin of counsel), for appellant. Tracie A. Sundack & Associates, LLC, White Plains, N.Y. (Jeffrey R. Pollack of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant appeals from a judgment of the Supreme Court, Queens County (McDonald, J.), entered September 26, 2002, which, upon a jury verdict on the issue of damages, is in favor of the plaintiff and against him in the principal sum of $100,000.

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

The plaintiff brought the instant action to recover damages for personal injuries allegedly sustained in a two-vehicle accident with the defendant.   After obtaining a judgment on the issue of liability, the case proceeded to a trial on damages.   The jury returned a verdict finding that the plaintiff sustained a medically-determined injury or impairment of a nonpermanent nature that prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 out of the first 180 days immediately following the accident, and awarded him $100,000 in damages.

We reverse the judgment and dismiss the complaint because the plaintiff failed to establish a prima facie case that he sustained an injury under the 90/180-day category of serious injury (see Insurance Law § 5102[d] ), and therefore, “no rational jury could find that the plaintiff sustained a serious injury based upon the evidence presented” (Crespo v. Kramer, 295 A.D.2d 467, 468, 744 N.Y.S.2d 187;  see Szczerbiak v. Pilat, 90 N.Y.2d 553, 664 N.Y.S.2d 252, 686 N.E.2d 1346;  Zeldin v. Mendelsohn, 288 A.D.2d 468, 733 N.Y.S.2d 879;  Sam v. Zelman, 252 A.D.2d 550, 675 N.Y.S.2d 894).   The plaintiff, who was a student when the accident occurred, missed no time from school following the accident.   Thus, he failed to establish a prima facie case that he sustained a medically-determined injury which prevented him from performing substantially all of the material acts which constitute his usual and customary daily activities for at least 90 of the first 180 days following the accident (see Crespo v Kramer, supra;  Parkhill v. Cleary, 305 A.D.2d 1088, 1089-1090, 759 N.Y.S.2d 262;  Lynch v. Williams, 265 A.D.2d 870, 872, 695 N.Y.S.2d 855;  Lashway v. Groshans, 241 A.D.2d 832, 834, 661 N.Y.S.2d 67;  Ciaccio v. J & R Home Improvements, 149 A.D.2d 558, 539 N.Y.S.2d 1007).

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