| McEachern v Manhattan & Bronx Surface Tr. Operating Auth. |
| 2006 NY Slip Op 50127(U) [10 Misc 3d 144(A)] |
| Decided on February 3, 2006 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Defendants Manhattan and Bronx Surface Transit Operating Authority, New York City Transit Authority and Paul A. Miller ("Transit"), as limited by their brief, appeal from so much of an order of the Civil Court, Bronx County (Wilma Guzman, J.), entered May 13, 2004, after a jury trial, as denied their motion for a directed verdict.
PER CURIAM:
Order (Wilma Guzman, J.), entered May 13, 2004, modified to grant Transit's motion for a directed verdict on the issue of whether plaintiff sustained a serious injury under the "permanent loss of use" category of Insurance Law §5102[d], and as modified, affirmed, without costs.
Where the jury found that plaintiff had sustained a serious injury and awarded a significant amount of medical expenses but no damages for pain and suffering, it cannot be said that the trial court erred in setting aside the jury's verdict as inconsistent and inadequate (see [*2]Schaefer v. RCP Associates, 232 AD2d 286 [1996]). Under these circumstances, the trial court providently granted a new trial on the issues of damages and whether plaintiff satisfied the serious injury threshold of Insurance Law §5102(d) (see Hock v. Aviles, ___AD3d___ [2005], 2005 NY Slip Op 06732; Ajoudanpour v. Globman, 2 AD3d 373 [2003]).
In view of plaintiff's candid acknowledgment at oral argument that the evidence was insufficient to support a claim under the "permanent loss of use" category of Insurance Law §5102(d), the retrial should be limited to the remaining serious injury categories pleaded.
This constitutes the decision and order of the court.
Decision Date: February 03, 2006