FILED: QUEENS COUNTY CLERK 07/17/2018 11:24 AM
`NYSCEF DOC. NO. 120
`
`INDEX NO. 700183/2013
`
`RECEIVED NYSCEF: 07/17/2018
`
`torn= Toon of the *tate of NEW pork
`Apvtlhitt EntTIMOR: %mob 3Jubiria1 Department
`
`D56027
`Uhu
`
`AD3d
`
`Argued - February 26, 2018
`
`ALAN D. SCHE1NKMAN, P.J.
`JEFFREY A. COHEN
`COLLEEN D. DUFFY
`ANGELA G. IANNACCI, JJ.
`
`2015-11980
`
`Apolonia Castillo, respondent, v MTA Bus Company,
`appellant.
`
`(Index No. 700183/13)
`
`DECISION & ORDER
`Pa it L. rt
`
`JUL
`
`OCUarelfcColaiRic
`
`Armienti, DeBellis, Guglielmo & Rhoden, LLP, New York, NY (Vanessa M.
`Corchia of counsel), for appellant.
`
`Silberstein, Awad & Miklos, P.C., Garden City, NY (Robert Miklos and Chan Hee
`Park 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 (Allan B. Weiss, J.), entered November 2, 2015.
`The judgment, upon an order of the same court (Carmen R. Velasquez, J.) entered June 25, 2015,
`denying the defendant's motion for summary judgment dismissing the complaint, upon a jury verdict
`finding the defendant liable for the plaintiffs injuries, and upon a separate jury verdict on the issue
`of damages finding that the plaintiff sustained a serious injury within the meaning of Insurance Law
`§ 5102(d), is in favor of the plaintiff and against the defendant in the principal sum of $1,500,000.
`
`ORDERED that the judgment is affirmed, with costs.
`
`On April 2, 2012, the then-72-year-old plaintiff was a passenger on a bus owned by
`the defendant, MTA :Bus 'Company. The complaint alleged that the bus accelerated rapidly, causing
`the plaintiff to be violently thrown to the floor and resulting in her injuries.
`
`The defendant moved for summary judgment dismissing the complaint on the grounds
`
`July 11,2018 (cid:9)
`
`Page 1.
`
`CASTELLO v MTA BUS COMPANY
`
`1 of 3
`
`(cid:9)
`

`

`FILED: QUEENS COUNTY CLERK 07/17/2018 11:24 AM
`NYSCEF DOC. NO. 120
`
`INDEX NO. 700183/2013
`
`RECEIVED NYSCEF: 07/17/2018
`
`4
`
`that it was not liable for the plaintiffs injuries, and that the plaintiff did not sustain a serious injury
`within the meaning of Insurance Law § 5102(d). In support of the liability branch of the motion, the
`defendant submitted the plaintiffs deposition testimony, in which she testified that she "didn't make
`any steps" after boarding the bus, and that the bus driver "drove right away." The plaintiff further
`testified: "[The bus driver] just slammed me to the back ... of the bus .... She drove away at a fast
`pace and that's when I landed all the way to the back of the bus in a seated down position with my
`left leg under me." According to the plaintiff, her fall was of sufficient force that she lost
`consciousness. The defendant also submitted the deposition testimony of the bus driver, who
`testified that the plaintiff was sitting in a seat when the bus driver drove away from the bus stop. In
`an order entered June 25, 2015, the Supreme Court denied the defendant's motion for summary
`judgment in its entirety.
`
`After a trial on the issue of liability, the jury unanimously found that the defendant
`was negligent, and that its negligence was a substantial factor in causing the accident. During the
`damages trial, the plaintiff submitted evidence that she sustained disc bulges in almost the entirety
`of her cervical spine—C2-3 through C7-T1—resulting in diminished range of motion. She also
`submitted evidence that she sustained lumbar disc bulges at L3-4 and L5-S1, resulting in left S!
`radiculopathy, meaning that a loss of function in the SI nerve caused weakness and loss of sensation
`in the plaintiff's left leg. Further, the plaintiff presented testimony that she sustained torn lateral and
`medial menisci in her left knee, requiring arthroscopic surgery, and that she may need a knee
`replacement in the future. Moreover, according to the trial testimony, the plaintiff developed
`postconcussive syndrome following the accident, and she will experience the effects of
`postconcussive syndrome for the rest of her life.
`
`The jury found that the plaintiff sustained a serious injury within the meaning of
`Insurance Law § 5102(d), and awarded her the sum of $500,000 for past pain and suffering and the
`sum of $1,000,000 for future pain and suffering over 10 years. On November 2, 2015, the Supreme
`Court entered a judgment in favor of the plaintiff and against the defendant in the principal sum of
`$1,500,000. The defendant appeals.
`
`We agree with the Supreme Court's determination to deny that branch of the
`defendant's motion which was for summary judgment dismissing the complaint on the ground that
`the plaintiff did not sustain a serious injury. The defendant met its prima facie burden of showing
`that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as
`a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79
`NY2d 955, 956-957). The defendant submitted competent medical evidence establishing, prima
`facie, that the alleged injuries to the cervical and thoracolumbar regions of the plaintiff's spine did
`not constitute serious injuries under the permanent consequential limitation of use or significant
`limitation of use categories of Insurance Law § 5102(d) (see Staff v Yshua, 59 AD3d 614). In
`opposition, however, the plaintiff submitted evidence raising triable issues of fact as to whether she
`sustained serious injuries to the cervical and thoracolumbar regions of her spine (see Pen l v Meher,
`18 NY3d 208, 218-219).
`
`We also agree with the Supreme Court's determination to deny that branch of the
`defendant's motion which was for summary judgment dismissing the complaint on the ground that
`
`July 11, 2018 (cid:9)
`
`CASTILLO v MTA BUS COMPANY
`
`Page 2.
`
`2 of 3
`
`

`

`FILED: QUEENS COUNTY CLERK 07/17/2018 11:24 AM
`NYSCEF DOC. NO. 120
`
`INDEX NO. 700183/2013
`
`RECEIVED NYSCEF: 07/17/2018
`
`it was not liable for the plaintiff's injuries. The evidence submitted by the defendant in support of
`that branch of the motion failed to eliminate triable issues of fact as to whether the movement of the
`bus at issue was unusual and violent (see Black v County of Dutchess, 87 AD3d 1097, 1098; cf
`Garcia v Sunny Transp. Servs., 99 AD3d 967; McLeod v City of Westchester, 38 AD3d 624; see
`generally Urquhart v New York City Tr. Auth., 85 NY2d 828, 829-830). Since the defendant did not
`sustain its prima facie burden, it is unnecessary to determine whether the papers submitted by the
`plaintiff in opposition were sufficient to raise a triable issue of fact (see Winegrad v New York Univ.
`Med. Ctr., 64 NY2d 851, 853).
`
`Contrary to the defendant's contention, during the liability trial, it was appropriate
`for the Supreme Court to allow the plaintiff's counsel to cross-examine the bus driver about her prior
`conviction for reckless driving (see CPLR 4513; Delva v New York City Tr. Auth., 123 AD3d 653,
`653-654; Scotto v Daddario, 235 AD2d 470).
`
`Contrary to the defendant's further contention, the Supreme Court providently
`exercised its discretion in denying the defendant's motion to preclude the plaintiffs expert physician
`from testifying at the damages trial (see CPLR 3101[d] [1][i]; Ramsen A. v New York City Hous.
`Auth., 112 AD3d 439, 440).
`
`The award of damages for past and future pain and suffering did not deviate
`materially from what would be reasonable compensation (see CPLR 5501[c]; Coleman v New York
`City Tr. Auth., 134 AD3d 427, 429; Halsey v New York City Tr. Auth., 114 AD3d 726,727; Kayes
`v Liberati, 104 AD3d 739, 740; Graves v New York City Tr. Auth., 81 AD3d 589, 589).
`
`The defendant's contentions regarding summation comments made by the plaintiff's
`counsel during the liability trial are unpreserved for appellate review (see Lagos v Fucale, 139 AD3d
`908). The defendant's remaining contentions are without merit.
`
`SCHEMICMAN, P.J., COHEN, DUFFY and IANNACCI, JJ., concur.
`
`SUPREME COURT, STATE OF NEW YORK ENTER:
`APPELLATE DIVISION SECOND DEPT.
`- (cid:9)
`I, APRILANNE AGOSTINO, Clerk of the Appellate Division of the Sept
`Court, Second Judicial Department do hereby certify that I have co
`this copy with the original filed in- my office on
`g
`JUL 1 1 (cid:9)
`this copy is a doffed transcription of said originial.
`E0i lian*reunto set my hand and affixed
`IN WITNESS iW (cid:9)
`the seal of thiS Court on
`
`Aprilanne1AgcMmno
`Clerk of the Court
`
`July 11, 2018 (cid:9)
`
`Page 3.
`
`CASTILLO v MTA BUS COMPANY
`
`3 of 3
`
`