Lamanna v. Jankowski

52 A.D.3d 340, 861 N.Y.S.2d 13

Opinion

Order, Supreme Court, Bronx County (Nelson S. Roman, J), entered January 26, 2007, which, in an action for personal injuries sustained in a motor vehicle accident, inter alia, granted defendants’ motion to set aside the jury verdict rendered in plaintiffs favor, and directed judgment in defendants’ favor as a matter of law, unanimously reversed, on the law and the facts, without costs, and the matter remanded for a new trial.

The jury found that as a result of the motor vehicle accident, plaintiff sustained a “permanent consequential limitation of use of a body organ or member” (Insurance Law § 5102 [d]), yet failed to award any damages for future pain and suffering. Since the failure to award such damages cannot be reconciled with a finding of permanent injury, retrial is mandated on all issues as there is a strong likelihood that the verdict results from a tradeoff on a finding of liability in return for a compromise on damages (see McKenna v Lehrer McGovern Bovis, 302 AD2d 329, 330 [2003]; Patrick v New York Bus Serv., 189 AD2d 611, 612 [1993]). Concur—Lippman, PJ., Saxe, Gonzalez and Nardelli, JJ.