Burlingame v. Toal

262 A.D.2d 942, 691 N.Y.S.2d 814

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 18, 1999
• Docket: Appeal No. 1
• Status: Published

Opinion

—Judgment unanimously reversed on the law without costs and new trial granted. Memorandum: At the trial of this personal injury action, defendant admitted that his negligence caused the head-on collision between plaintiffs’ and defendant’s vehicles. The jury returned a verdict of no cause of action based on its finding that Eleanor Burlingame (plaintiff) did not sustain a serious injury as a result of the accident (see, Insurance Law § 5102 [d]). Supreme Court erred in denying plaintiffs’ request to submit to the jury a verdict sheet containing separate interrogatories with respect to the three theories of serious injury at issue. The court instead submitted to the jury a verdict sheet containing one interrogatory that asked whether plaintiff sustained a “serious injury”. Where multiple theories of serious injury are at issue, the verdict sheet should contain separate interrogatories with respect to each theory (see, Velez v Svehla, 229 AD2d 528, 530; Cirasuolo v Cahill, 119 AD2d 986). We conclude that the court’s error may have affected the jury’s finding that plaintiff did not sustain a serious injury. We therefore reverse the judgment and grant a new trial. (Appeal from Judgment of Supreme Court, Monroe County, Smith, J.— Negligence.) Present — Pine, J. P., Hayes, Pigott, Jr., Hurlbutt and Callahan, JJ.