-vs- Index #H-08285





(David M. Civilette, Esq.

of Counsel) for Plaintiffs


(Mark G. Giangreco, Esq. of

Counsel) for Defendant



Plaintiffs move to set aside the verdict of no cause and

directing judgment in their favor on the threshold questions in the verdict sheet, or, for a new trial on the grounds that the verdict is contrary to the weight of evidence and the interest of justice.

The trial was on the question of damages, the Court having granted plaintiff's motion for partial summary judgment on liability in this rear end auto collision where defendant

admitted being distracted while his truck was in motion.

The jury answered "NO" to the following questions:

"1. As a result of this accident, did plaintiff, Joanne

Smith sustain a medically determined injury or impairment of a nonpermanent nature which prevented her from performing

substantially all of the material acts which constituted her

usual and customary daily activities, including hair dressing

work, for not less than 90 days during the first 180 days after the occurrence of the injury or impairment."

"2. As a result of the accident, did plaintiff, Joanne Smith sustain a significant limitation of use of a body function?

A limitation of use of a body function means that the

function does not operate at all or operates only in some limited way. It is not necessary for you to find that there has been a total loss of the body function or that the limitation of use is permanent. However, the limitation of use must be significant, meaning that the loss is important or meaningful. A minor, mild or slight limitation of use is not significant."

The chiropractor and a neurologist who testified on behalf of plaintiff, and, defendant's examining chiropractor were not in significant disagreement. Each found some measure of disability.

According to the Court's trial notes, Dr. Donald Ehrenreich, the neurologist testified that in his opinion the plaintiff was impaired for the statutory limits; that plaintiff's condition was related to the accident; it was permanent in nature and a marked to severe disability based on her complaints and his examination.

Defendant's chiropractor felt plaintiff exhibited moderate cervical residuals and myofacial pain at an examination some 10 months or more after the accident; that he found no muscle spasm; that a meter he used indicated that she had a 75% capacity to rotate her neck, yet, he testified he found no disability; that she sustained mild, soft tissue injuries; that she was not disabled from normal and household duties.

Defendant argues that plaintiff's credibility was

"inextricably tied to the plaintiff's proof on damages."

Reasoning that her complaints were subjective in nature,

defendant says the proof turned on the accuracy of complaints she relayed to the doctors and to the jury; that from their

observation of the plaintiff and her testimony, the jury did not believe her injuries met the serious injury threshold.

Relying on DUFEL V. GREEN, 84 NY2d 795, plaintiff argues

that whether an injury is permanent, or a limitation of use or

function is either "significant" or "consequential" usually

present medical questions beyond the knowledge of a lay jury, and since defendant's physician did not opine as to the statutory language, but plaintiff's doctor did, this Court should set aside the verdict.

That case did not remove from the province of the jury the weight to be given to the testimony of both lay and medical witnesses.

It was for the jury to determine whether plaintiff's

injuries "prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities . . . for not less than 90 days during the first 180 days. . . ", or, whether she sustained a significant limitation of use of a body function" as defined for them.

This Court does not agree with the jury verdict here, but, is mindful of and sensitive to a recent opinion of the Fourth Department in REGELSKI V. WEBER, 209 AD2d 965, wherein the Court said:

"Supreme Court erred in granting plaintiff's

motion to set aside the jury verdict in favor

of defendants. 'It is settled law that a motion

pursuant to CPLR 4404 (a) should not be granted

unless the evidence in favor of the plaintiff

is so great that the verdict could not have been

reached upon any fair interpretation of the

evidence.' (citations omitted)."

The motion to set aside the verdict is denied, without


This is the DECISION AND ORDER of this Court. No further

order is necessary.

Dated: August 25, 1995

Mayville, New York



Justice of Supreme Court