Bellamy v. Kaplan

309 A.D.2d 583, 765 N.Y.S.2d 365, 2003 N.Y. App. Div. LEXIS 10565

Opinion

Order, Supreme Court, Bronx County (Alan Saks, J.), entered on or about April 4, 2002, which granted defendant’s motion to set aside the jury verdict and directed a new trial on the issue of serious injury, unanimously reversed, on the law, without costs, the motion denied and the verdict reinstated.

On the threshold issue of serious injury (see Insurance Law § 5102 [d]), the jury found that plaintiff did not suffer a permanent and significant limitation of use of a body organ or member, but did sustain a significant limitation of use of a body function or system. The jury also awarded plaintiff damages for future pain and suffering based on a 2IV2 year life expectancy. Defendant moved to set aside the verdict as against the weight of the evidence, but the court, sua sponte, raised the issue whether the jury’s verdict was inconsistent. Because the award for future damages, given the plaintiff’s age, was the equivalent of a finding of permanency, the court believed the verdict to be inconsistent. However, the court properly instructed the jury that plaintiff met the threshold issue of serious injury if he sustained either a permanent and significant limitation of use of a body organ or member or a significant limitation of use of a body function or system. Indeed, “[a] permanent injury is not excluded” from the definition of a significant limitation of use of a body function or system (see Preston v Young, 239 AD2d 729, 732 [1997]). Therefore, the jury’s verdict was not inconsistent and is reinstated. Concur— Saxe, J.P., Ellerin, Williams, Lerner and Marlow, JJ.