Bebry v. Farkas-Galindez

276 A.D.2d 656, 714 N.Y.S.2d 734, 2000 N.Y. App. Div. LEXIS 10683

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals, on the ground of inadequacy, from a judgment of the Supreme Court, Nassau County (Joseph, J.), entered August 5, 1999, which, upon a jury verdict finding that he sustained no damages for future pain and suffering, and sustained damages in the amount of only $35,000 for past pain and suffering, is in his favor and against the defendants in the principal sum of $35,000.

Ordered that the judgment is reversed, on the law, and a new trial is granted on the issue of damages only, with costs to abide the event.

The plaintiff sustained a fractured foot and other injuries in an automobile accident. During the damages trial, the Supreme Court charged the jury that the plaintiff sustained a fractured foot as a matter of law. Since a fracture is included within the statutory definition of “serious injury” (see, Insurance Law § 5102 [d]; Kolios v Znack, 237 AD2d 333), the Supreme Court erred in instructing the jury to determine, inter alia, whether the plaintiff sustained a permanent consequential limitation of his foot.

Moreover, the Supreme Court erred in instructing the jury to determine whether the plaintiff’s sternum was fractured and whether the plaintiff sustained a permanent consequential limitation of his sternum. “If a plaintiff establishes a prima facie case that any one of several injuries that he or she sustained in an accident is a ‘serious injury’ within the meaning of Insurance Law § 5102 (d), he or she is entitled to seek recovery for all injuries incurred as a result of the accident” (O’Neill v O’Neill, 261 AD2d 459, 460; Preston v Young, 239 AD2d 729, 731, n; Kelley v Balasco, 226 AD2d 880). Under the circumstances, a new trial is required.

In light of this determination, we need not reach the plaintiff’s remaining contentions. Altman, J. P., Goldstein, McGinity and Luciano, JJ., concur.