Majority
Memorandum: Plaintiff commenced this action seeking damages for injuries he allegedly sustained in a motor vehicle accident. Following a trial, the jury found that plaintiff sustained a serious injury under only the 90/180-day category of serious injury set forth in Insurance Law § 5102 (d), but it awarded plaintiff zero damages. Plaintiff moved to set aside the verdict in part and for a new trial on damages only. According to plaintiff, the jury’s finding that he did not sustain a serious injury under the significant limitation of use category and its award of zero damages were against the weight of the evidence. We conclude that Supreme Court erred in denying those parts of the post-trial motion seeking to set aside the verdict with respect to damages for past pain and suffering and for a new trial thereon.
It is well settled that “the amount of damages to be awarded for personal injuries is primarily a question for the jury” (Nutley v New York City Tr. Auth., 79 AD3d 711 , 712 [2010] [internal
We reject plaintiffs contention that the court erred in denying the post-trial motion with respect to damages for lost wages and future pain and suffering. We also reject plaintiffs contention that the court erred in denying the post-trial motion with respect to the significant limitation of use category of serious injury. “ ‘A jury is not required to accept an expert’s opinion to the exclusion of the facts and circumstances disclosed by other testimony and/or the facts disclosed on cross-examination . . . Indeed, a jury is at liberty to reject an expert’s opinion if it finds the facts to be different from those [that] formed the basis for the opinion or if, after careful consideration of all the evidence in the case, it disagrees with the opinion’ ” (Cummings v Jiayan Gu, 42 AD3d 920 , 922-923 [2007]). Here, the verdict with respect to the significant limitation of use category “ ‘was based upon a fair interpretation of the evidence’ ” (Radish v DeGraff Mem. Hosp., 291 AD2d 873 , 874 [2002]), including the surveillance video of plaintiff several years after the accident, in which he was depicted moving about with no apparent limita
Cases cited
- Nutley v. New York City Transit Authority 79 AD3d 711 at 712 p. 1579
- Ortiz v. 975 LLC 74 AD3d 485 at 486 p. 1580
- Vaval v. NYRAC, Inc. 31 AD3d 438 p. 1580
- Tafari v. Zon 8 NY3d 1020 p. 1580
- Vigilant Insurance v. Bear Stearns Companies, Inc. 9 NY3d 937 p. 1580
- Miller v. Weisel 15 AD3d 458 at 459 p. 1580
- Zgrodek v. McInerney 61 AD3d 1106 at 1108 p. 1580
- Vogel v. Cichy 53 AD3d 877 at 880 p. 1580
- Gillespie v. Girard 301 AD2d 1018 p. 1580
- Cummings v. Jiayan Gu 42 AD3d 920 at 922-923 p. 1580