Majority
p. 490Anna Marie DeSimone, Respondent, v Royal GM, Inc., et al., Appellants. [856 NYS2d 628]
By failing to move for a directed verdict pursuant to CPLR 4401 on the issue of whether the plaintiff sustained a “serious injury” under Insurance Law § 5102 (d), the defendants implicitly conceded that the issue was for the trier of fact (see
p. 491
Miller v Miller, 68 NY2d 871 , 873 [1986]; Hurley v Cavitolo, 239 AD2d 559 [1997]). Furthermore, the jury verdict finding, inter alia, that the plaintiff sustained a “significant limitation of use of a body function or system” should not be set aside as against the weight of the evidence, as it could have been reached on a fair interpretation of the evidence (see Bendersky v M & O Enters. Corp., 299 AD2d 434 , 435 [2002]). Lastly, the jury award of damages for the plaintiffs rotator cuff injury and herniated cervical disc did not deviate from what would be reasonable compensation (see CPLR 5501; Severin v Benenati, 251 AD2d 316 , 317 [1998]). Ritter, J.P., Florio, Garni and Leventhal, JJ., concur.
Cases cited
- Miller v. Miller 68 NY2d 871 at 873 p. 491
- Hurley v. Cavitolo 239 AD2d 559 p. 491
- Bendersky v. M & O Enterprises Corp. 299 AD2d 434 at 435 p. 491
- Severin v. Benenati 251 AD2d 316 at 317 p. 491