Barnes v. S.T. Kociszewski

4 A.D.3d 824, 771 N.Y.S.2d 429, 2004 N.Y. App. Div. LEXIS 1462

Opinion

Appeal from an order of the Supreme Court, Niagara County (Amy J. Fricano, J.), entered January 6, 2003. The order, insofar as appealed from, granted in part plaintiffs’ motion to set aside the jury verdict, granted a new trial on the issue whether plaintiff Lomax Barnes sustained economic loss in excess of basic economic loss and vacated the judgment in favor of defendants.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs.

Memorandum: Plaintiffs commenced this action to recover damages for injuries sustained by Lomax Barnes (plaintiff) as a result of an automobile accident. Supreme Court properly granted in part plaintiffs’ motion pursuant to CPLR 4404 (a) to set aside the jury verdict of no cause of action and granted a new trial on the issue whether plaintiff sustained economic loss in excess of basic economic loss (see Insurance Law § 5102 [a]; § 5104 [a]). The court’s error in foreclosing the jury from considering that issue unless it found that plaintiff sustained a serious injury (see § 5102 [d]) warrants a new trial (see Tortorello v Landi, 136 AD2d 545, 546 [1988]; see generally Montgomery v Daniels, 38 NY2d 41, 47-48 [1975]; 1A NY PJI3d 381 [2004]). Contrary to defendants’ contention, plaintiffs made a sufficient showing that plaintiff sustained economic loss in excess of basic economic loss to warrant submission of the issue to the jury. Present—Pigott, Jr., PJ., Green, Pine, Gorski and Lawton, JJ.