Lamanna v. Jankowski — 52 A.D.3d 340

Majority

p. 340

(June 17, 2008)

Amber Lee Lamanna, Appellant, v Joseph Jankowski et al., Respondents.

[861 NYS2d 13]

Order, Supreme Court, Bronx County (Nelson S. Roman, J), entered January 26, 2007, which, in an action for personal injuries sustained in a motor vehicle accident, inter alia, granted defendants’ motion to set aside the jury verdict rendered in plaintiffs favor, and directed judgment in defendants’ favor as a matter of law, unanimously reversed, on the law and the facts, without costs, and the matter remanded for a new trial.

The jury found that as a result of the motor vehicle accident, plaintiff sustained a “permanent consequential limitation of use of a body organ or member” (Insurance Law § 5102 [d]), yet failed to award any damages for future pain and suffering. Since the failure to award such damages cannot be reconciled with a finding of permanent injury, retrial is mandated on all issues as

p. 341

there is a strong likelihood that the verdict results from a tradeoff on a finding of liability in return for a compromise on damages (see McKenna v Lehrer McGovern Bovis, 302 AD2d 329 , 330 [2003]; Patrick v New York Bus Serv., 189 AD2d 611 , 612 [1993]). Concur—Lippman, PJ., Saxe, Gonzalez and Nardelli, JJ.

Cases cited

Patrick v. New York Bus Service, Inc. 189 AD2d 611 N.Y. App. Div. 1993-01-12 at 612 p. 341

Statutes and regulations cited

Insurance Law p. 340