Defendant Efrain Saltares appeals from an order of the Civil Court of the City of New York, Bronx County, dated January 3, 2001 (Wilma Guzman, J.) which granted plaintiff's motion to set aside a jury verdict in favor of defendant and directed a new trial.

PER CURIAM:

Order dated January 3, 2001 (Wilma Guzman, J.) reversed, with $10 costs, motion denied and jury verdict reinstated.

After trial of this personal injury action arising out of an automobile accident, the jury determined that plaintiff did not sustain "serious injury" within the statutory definitions of "permanent loss of use", "significant limitation" or "permanent consequential limitation" [*2](Insurance Law § 5102[d]). The trial court granted a motion to set aside the verdict based upon its failure to charge the "90/180 day" category of serious injury. However, plaintiff waived any error in this regard by having failed to request a "90/180 day" charge or to take an exception to the charge as given (see CPLR § 4110-b). In any event, such a charge was unwarranted since the trial evidence did not permit a finding that substantially all of plaintiff's material daily activities were curtailed "to a great extent" after the accident (see Licari v Elliott, 57 NY2d 230, 236 [1982]; Berk v Lopez, 278 AD2d 156, 157 [2000]). Nor was the jury's finding that plaintiff did not sustain serious injury within the statutory categories properly charged against the weight of the evidence. The jury reasonably could credit the expert opinion evidence presented by defendant that plaintiff's claimed limitations were caused not by the accident but by a preexisting degenerative condition (see Savage v Snell, 257 AD2d 794 [1999]).

This constitutes the decision and order of the Court.
Decision Date: June 28, 2005