Ciocca v. Park

Peters, J. Appeal from a judgment of the Supreme Court (McGill, J.), entered October 22, 2004 in Clinton County, which granted defendants’ motion for a directed verdict at the close of plaintiffs’ case. On October 27, 2002, plaintiff Raffaele Ciocca (hereinafter plaintiff), a resident of Canada, was struck at an intersection while traveling north on the Taconic Earkway by a vehicle [672] driven by defendant Lang-Kyoo Park (hereinafter defendant). Refusing medical help at the scene, plaintiff was examined the following day by his physician in Canada, Hian Lam Po Yuen (hereinafter Lam). Plaintiff contends that he told Lam about the accident and had complained of pain in his neck, arms and legs. Plaintiff was 65 years old at the time and was employed in the construction field. Lam prescribed Advil and plaintiff ultimately returned to work on less physically demanding projects. With the pain not improving, plaintiff went back to Lam in December 2002, complaining of limited motion in his right arm. Lam referred him to John Sutton, an orthopedic surgeon, who examined him in April 2003. Sutton diagnosed a torn right rota-tor cuff in addition to a torn right bicep muscle. Plaintiffs thereafter commenced this personal injury action and the case proceeded to trial. At the close of plaintiffs’ proof, defendants moved for a directed verdict. Supreme Court granted the motion upon finding that plaintiffs failed to offer any objective medical evidence that the car accident caused plaintiffs injuries. Plaintiffs appeal, and we affirm. A directed verdict is warranted when, “upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party” (Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; see Calafiore v Kiley, 303 AD2d 816, 816-817 [2003]; Cross v Finch Pruyn & Co., 281 AD2d 836, 836 [2001]). In considering such motion, “the moving party has the burden of showing that, upon viewing the evidence in the light most favorable to the plaintiff and affording the plaintiff the benefit of every inference . . . the plaintiff has not made out a prima facie case” (Holy Temple First Church of God in Christ v City of Hudson, 17 AD3d 947, 947 [2005]). Focusing on the issue of causation, plaintiff proffered his own testimony and that of Sutton, whose testimony was based upon plaintiff’s subjective statements, X rays and an MRI. Sutton testified that it was impossible to tell from the X rays, which he viewed in his office, whether the car accident caused plaintiffs injuries. To the extent that plaintiffs contend that Sutton should have been permitted to rely upon Lam’s records, written in both English and French, to testify as to the issue of causation, plaintiffs’ own counsel agreed, during trial, that Sutton would only use those records written in English. To the extent that plaintiffs contend that it was error to preclude Sutton from testifying about plaintiffs MRI and X rays, Sutton did testify regarding his office review of the X rays,* and the testimony about the MRI was properly excluded because Sutton exclusively [673] relied upon the radiologist’s report, “not merely [as] a link in the chain of data” (Borden v Brady, 92 AD2d 983, 984 [1983]), but rather as the entire foundation for his opinion (see Brown v County of Albany, 271 AD2d 819, 821 [2000], lv denied 95 NY2d 767 [2000]). Nor do we find that the testimony of Mark Bucksbaum, board certified in physical medicine and rehabilitation, cured the causative lapse since he examined plaintiff approximately five weeks before trial and prepared a report based upon an MRI which was taken approximately nine months after the accident (see Pommells v Perez, 4 NY3d 566, 573-574 [2005]). With plaintiffs failing to submit even a scintilla of objective medical evidence on the issue of causation, and with no contention of error raised upon appeal sufficient, even if valid, to cure the lack of causative proof, Supreme Court properly granted defendants’ motion for a directed verdict (see Holy Temple First Church of God in Christ v City of Hudson, supra at 948; Franchini v Palmieri, 307 AD2d 1056, 1057-1058 [2003], affd 1 NY3d 536 [2003]; Brown v County of Albany, supra at 821; Broderick v Spaeth, 241 AD2d 898, 901 [1997], lv denied 91 NY2d 805 [1998]; Wood v Hein Trucking Corp., 115 AD2d 181, 183 [1985]). Footnotes [*] Plaintiffs never proffered the X rays at trial.