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.
