Juan M. Lucas, appellant,
State of New York, respondent. Claim No. 119207
& Slavit, PLLC, New York, NY (Ira S. Slavit of counsel),
T. Schneiderman, Attorney General, New York, NY (Michael S.
Belohlavek and Eric Del Pozo of counsel), for respondent.
M. LEVENTHAL, J.P., BETSY BARROS, VALERIE BRATHWAITE NELSON,
LINDA CHRISTOPHER, JJ.
DECISION & ORDER
claim to recover damages for personal injuries, the claimant
appeals from a judgment of the Court of Claims (Ferreira,
J.), dated April 1, 2015, which, upon a decision of the same
court dated March 18, 2015, made after a trial on the issue
of damages, is in favor of the defendant and against him
dismissing the claim.
that the judgment is affirmed, with costs.
7, 2010, the claimant allegedly was injured when the bus he
was driving was struck in the rear by a dump truck owned by
the defendant, the State of New York. Thereafter, the
claimant commenced this claim against the defendant to
recover damages for personal injuries, and the Court of
Claims granted his motion for summary judgment on the issue
trial on the issue of damages, the claimant's treating
neurosurgeon testified that an MRI of the claimant's
lumbar spine showed degenerative disc disease. The
neurosurgeon also testified that the claimant experienced
lower back pain that began after the accident. He noted that
the source of the claimant's pain was unknown, and that
he therefore could not recommend any type of spinal surgery
to reduce the pain. According to the claimant's
neurosurgeon, the claimant's pain prevented him from
doing his job as a bus driver. On cross-examination, the
neurosurgeon testified that he did not recall ever testing
the claimant's range of motion.
defendant's expert neurosurgeon testified that his
neurological examination of the claimant revealed normal
findings regarding strength and sensation. He also testified
that he reviewed an MRI film of the claimant's lumbar
spine taken about one month after the accident and did not
see "any signs of any significant bulging herniation,
protrusion, or other disc pathology other than... some minor
disc dehydration." The defendant's expert
neurosurgeon concluded that the claimant did not have any
traumatically induced neurologic dysfunction or neurologic
disability. He added that the claimant "could perform
his work activities." The defendant also presented the
testimony of an investigator for the New York State Attorney
General's Office, who testified that he followed the
claimant shortly before the trial and observed him shoveling
snow, which required frequent bending, for about 20 minutes.
decision dated March 18, 2015, the Court of Claims found that
the claimant failed to establish that he sustained a serious
injury within the meaning of Insurance Law § 5102(d). On
April 1, 2015, the court issued a judgment in favor of the
defendant and against the claimant dismissing the claim. The
reviewing a determination made after a nonjury trial, the
power of this Court is as broad as that of the trial court,
and this Court may render the judgment it finds warranted by
the facts, ' bearing in mind that in a close case, the
trial judge had the advantage of seeing the witnesses and
hearing the testimony" (DePaula v State of New
York, 82 A.D.3d 827, 827, quoting Northern
Westchester Professional Park Assoc. v Town of Bedford,
60 N.Y.2d 492, 499; see Jones v State of New York,
124 A.D.3d 599, 600).
the record supports the determination of the Court of Claims
that the claimant failed to establish that he sustained a
serious injury to the lumbar region of his spine under either
the permanent consequential limitation of use or significant
limitation of use categories of Insurance Law § 5102(d)
(see generally Toure v Avis Rent A Car Sys., 98
N.Y.2d 345; Gaddy v Eyler, 79 N.Y.2d 955, 956-957;
Staff v Yshua, 59 A.D.3d 614; Fudol v
Sullivan, 38 A.D.3d 593, 594). Moreover, the court's
determination that the claimant did not sustain a serious
injury under the 90/180-day category of Insurance Law §
5102(d) was warranted by the facts (see generally Che
Hong Kim v Kossoff, 90 A.D.3d 969; Karpinos v
Cora, 89 A.D.3d 994, 995; Richards v Tyson, 64
A.D.3d 760, 761).
claimant's remaining contentions are without merit.
LEVENTHAL, J.P., BARROS, BRATHWAITE NELSON and ...