HANCOCK ESTABROOK, LLP, SYRACUSE (ALAN J. PIERCE OF COUNSEL),
AND ROBERT NICHOLS, BUFFALO, FOR PLAINTIFF-APPELLANT.
SHELTON LIPTAK NOWAK LLP, BUFFALO (JUSTIN HENDRICKS OF
COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, AND NEMOYER, JJ.
from a judgment (denominated order and judgment) of the
Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.),
entered December 27, 2016. The judgment dismissed the
complaint upon a jury verdict.
hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs, the posttrial
motion is granted, the verdict is set aside, the complaint is
reinstated and a new trial is granted.
Plaintiff commenced this action seeking damages for injuries
that she allegedly sustained as a result of a car accident in
which her vehicle was struck by a vehicle operated by
defendant. At trial, defendant acknowledged that her failure
to yield the right-of-way caused the accident, but she
claimed that plaintiff did not sustain a resultant
"serious injury" within the meaning of Insurance
Law § 5102 (d). The following question appeared on the
verdict sheet: "Was the negligence of defendant a
substantial factor in causing injury to the plaintiff?"
The jury answered that question in the negative and thereby
returned a verdict in defendant's favor. Plaintiff now
appeals from the judgment dismissing the complaint on the
jury's verdict. Plaintiff's appeal brings up for
review both the denial of her pretrial motion for partial
summary judgment on the issue of serious injury and the
denial of her posttrial motion to set aside the verdict as
against the weight of the evidence (see CPLR 5501
[a] , ).
first reject plaintiff's contention that Supreme Court
erred in denying her motion for partial summary judgment. It
is undisputed that plaintiff met her initial burden of
establishing that she sustained a serious injury under the
significant limitation of use and 90/180-day categories. The
report submitted by defendant's medical expert, however,
raised an issue of fact regarding whether plaintiff sustained
a serious injury as a result of the accident. Thus, the court
properly denied plaintiff's motion for partial summary
judgment (see Hines-Bell v Criden, 145 A.D.3d 1537,
1538 [4th Dept 2016]; Harris v Campbell, 132 A.D.3d
1270, 1271 [4th Dept 2015]).
next to plaintiff's challenge to the denial of her
posttrial motion to set aside the verdict as against the
weight of the evidence. In conducting our weight of the
evidence review, we are cognizant of the fact that the jury
was asked to determine only whether plaintiff sustained an
"injury." Unfortunately, the jury was not asked to
determine the appropriate legal issue, i.e., whether
plaintiff sustained a "serious injury" within the
meaning of Insurance Law § 5102 (d). We therefore limit
our analysis to whether the evidence of "injury" as
colloquially understood "so preponderated in favor of
the plaintiff that [the verdict] could not have been reached
on any fair interpretation of the evidence"
(McMillian v Burden, 136 A.D.3d 1342, 1343 [4th Dept
2016] [internal quotation marks omitted]; see Lolik v Big
V Supermarkets, 86 N.Y.2d 744, 746 ; Rivera v
MTA Long Is. Bus, 45 A.D.3d 557, 558 [2d Dept 2007]).
answer that question in the affirmative. Plaintiff's
medical records from her visit to the emergency room
immediately after the accident show that she was diagnosed
with cervical sprain, strain, minor head injury, acute low
back pain, and shoulder strain. Plaintiff's treating
chiropractor testified that, in his opinion, plaintiff had
"on going disabilities" and "continued to
suffer pain and significant limitations of motion" as a
result of the accident. He also testified that
plaintiff's range of motion was limited and that she
experienced moderate to severe muscle spasms on multiple
occasions. Defendant's medical expert even testified that
plaintiff suffered muscle pain as a result of the accident,
although he opined that such pain was only "a mild or
minor injury and not a significant consequential disabling
injury." In light of the foregoing, we conclude that the
evidence that the accident was "a substantial factor in
causing an injury to plaintiff" so
preponderates in plaintiff's favor that the jury's
contrary finding could not have been reached on any fair
interpretation of such evidence (Herbst v Marshall,
89 A.D.3d 1403, 1403 [4th Dept 2011] [emphasis added];
see Marks v Alonso, 125 A.D.3d 1475, 1475 [4th Dept
2015]; Browne v Pikula, 256 A.D.2d 1139, 1139 [4th
Dept 1998]). Although there was ...