Hambsch v. New York City Transit Authority

101 A.D.2d 807, 475 N.Y.S.2d 467, 1984 N.Y. App. Div. LEXIS 18461

Opinion

In an action to recover damages for personal injuries suffered in an automobile accident, defendant appeals from a judgment of the Supreme Court, Kings County (Morton, J., on issue of liability; Bellard, J., on issue of damages), dated June 7,1983, which, upon a jury verdict, awarded plaintiff the principal sum of $50,000. 11 Judgment reversed, on the law, without costs or disbursements, and complaint dismissed. K The issue of whether the plaintiff has suffered a “serious injury” within the meaning of subdivision 4 of section 671 of the Insurance Law is a question of law for the court in the first instance (Licari v Elliott, 57 NY2d 230). On the record before us, plaintiff failed as a matter of law to establish the existence of a serious injury and, therefore, it was error to submit the case to the jury. The testimony of plaintiff’s family physician is clearly inadequate to establish that plaintiff was suffering from a condition known as spondylolisthesis or, even assuming that she was, that such condition was the result of a fracture caused by trauma and attributable to the accident. Nor was there any line of reasoning by which the jury could have concluded that as a result of the accident plaintiff suffered a permanent loss of the use of a body function or system (Licari v Elliott, supra). O’Connor, J. P., Brown, Boyers and Eiber, JJ., concur.