Viscomi v. Friedfertig

266 A.D.2d 206, 696 N.Y.S.2d 900, 1999 N.Y. App. Div. LEXIS 11089

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 1, 1999
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendants Mordechai Friedfertig and Barry Friedfertig, and Gary Viscomi, separately appeal from an order of the Supreme Court, Suffolk County (Seidell, J.), entered August 19, 1998, which, upon a jury verdict on the issue of liability finding the defendants at fault in the happening of the accident, and upon a verdict on the issue of damages finding, in effect, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), granted the plaintiff’s motion to set aside the verdict on the issue of damages and directed a new trial on that issue.

Ordered that the order is reversed, on the law, with costs, the motion is denied, the verdict on the issue of damages is reinstated, and the matter is remitted to the Supreme Court, Suffolk County, for entry of a judgment dismissing the complaint.

Contrary to the determination of the Supreme Court, the verdict on the issue of damages in favor of the defendants was not against the weight of the evidence. Therefore, the Supreme Court should not have granted the plaintiff’s motion to set aside the verdict on that issue (see, Otero v Hyatt, 235 AD2d 407; Nicastro v Park, 113 AD2d 129). Bracken, J. P., Krausman, McGinity and Schmidt, JJ., concur.