Lamanna v. Jankowski

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

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 17, 2008
• Status: Published

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.