Key Takeaway
Court overturns jury verdict finding no serious injury under Insurance Law 5102(d) when plaintiff proved rotator cuff tear with significant range of motion loss.
This article is part of our ongoing 5102(d) issues coverage, with 89 published articles analyzing 5102(d) issues issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
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 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.”
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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
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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.
Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
If you need legal help with a 5102(d) issues matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
