The jury could not find under a reasonable view of the evidence that plaintiff failed to sustain a serious injury under 5102(d)

DiBenedetto v Abreu, 2013 NY Slip Op 04570 (2d Dept. 2013)

There have been so many weird bodily injury cases lately that I feel the need to discuss them.  This one and the next one I am going to post is about as weird as it gets in this industry.

“After a trial on the issue of damages, the jury found, inter alia, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. The Supreme Court granted that branch of the plaintiff’s motion which was pursuant to CPLR 4404(a) to set aside so much of the verdict as found that he did not sustain a serious injury, for judgment as a matter of law on that issue, and for a new trial on the issue of damages only.”

“The plaintiff’s evidence demonstrated, inter alia, that he sustained a rotator cuff tear and left biceps tendon tear, that these injuries were acute, and that they were the proximate result of the accident. The plaintiff also presented evidence of a quantified and significant decrease in range [*2]of motion in his left shoulder, both contemporaneously with the accident, and at the time of the most recent examination of his shoulder (cf. Estrella v GEICO, 102 AD3d 730, 731-732). The evidence presented by the defendant did not rebut the plaintiff’s proof.”

So if the defendant doctor testifies poorly and the jury is not impressed with the plaintiff’s medical proof, then the court can set aside the jury verdict because it feels like it?   Not sure what happened here.

Related Articles

• Understanding 5102(d) requirements and common case mistakes
• How IME doctors must explain findings regarding diminished range of motion
• Permanent consequential versus significant limitation standards in serious injury law
• When suboptimal effort undermines serious injury threshold claims
• Personal Injury

Legal Update (February 2026): Since this 2013 decision, New York courts have continued to refine the evidentiary standards for establishing serious injury under Insurance Law § 5102(d), particularly regarding objective medical proof requirements and the sufficiency of contemporaneous versus gap-in-treatment medical evidence. Additionally, CPLR 4404 motion practice and the standards for setting aside jury verdicts may have evolved through subsequent appellate decisions. Practitioners should verify current judicial interpretations of serious injury thresholds and post-trial motion procedures.