Opinion
CA 03-00117
July 3, 2003.
Appeal from an order of Supreme Court, Chautauqua County (Gerace, J.), entered March 26, 2002, which, inter alia, granted plaintiff's motion seeking, inter alia, to set aside a verdict and for judgment notwithstanding the verdict on liability.
BOUVIER, O'CONNOR, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR DEFENDANT-APPELLANT.
CELLINO BARNES, P.C., BUFFALO (JASON H. STERNE OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, WISNER, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying those parts of the motion of plaintiff seeking to set aside the verdict, for judgment notwithstanding the verdict on liability, and for an order striking portions of the testimony of defendant's expert witness, by reinstating the verdict and by vacating the third ordering paragraph granting a trial on damages and as modified the order is affirmed without costs.
Memorandum:
Plaintiff commenced this action to recover damages for injuries she allegedly sustained in an automobile accident. At the conclusion of her trial testimony, plaintiff moved to amend her bill of particulars to include a fracture to her left wrist as a qualifying serious injury under Insurance Law 5102(d), and Supreme Court granted her motion. The jury thereafter returned a verdict in favor of defendant, finding, inter alia, that plaintiff did not sustain a fracture. Plaintiff moved to set aside the verdict as against the weight of the evidence and for judgment notwithstanding the verdict on liability on the ground that the evidence established as a matter of law that she sustained a serious injury, namely a fracture, as a result of the accident. Plaintiff also sought an order striking portions of the testimony of defendant's expert witness and reimbursement for expert witness fees incurred as a result of trial delay attributable to defendant. The court granted plaintiff's motion in its entirety and granted a trial on damages.
In order for a court to determine as a matter of law that a jury verdict is not supported by sufficient evidence, it is necessary to conclude first that there is simply no valid line of reasoning and permissible inferences that could possibly lead rational persons to the conclusion reached by the jury on the basis of the evidence presented at trial ( see Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499). A motion to set aside a jury verdict as against the weight of the evidence, however, should not be granted "unless the preponderance of the evidence in favor of the moving party is so great that the verdict could not have been reached upon any fair interpretation of the evidence" ( Dannick v. County of Onondaga, 191 A.D.2d 963, 964, citing Kuncio v. Millard Fillmore Hosp., 117 A.D.2d 975, lv denied 68 N.Y.2d 608). That determination is addressed to the sound discretion of the trial court, but if the verdict is one that reasonable persons could have rendered after receiving conflicting evidence, the court should not substitute its judgment for that of the jury ( see Bolles v. County of Cattaraugus, 162 A.D.2d 975, rearg granted 166 A.D.2d 931). The court must not "`unnecessarily interfere with the fact-finding function of the jury to a degree that amounts to an usurpation of the jury's duty'" ( Nicastro v. Park, 113 A.D.2d 129, 133, quoting Ellis v. Hoelzel, 57 A.D.2d 968, 969). Upon our review of the record, we conclude that the jury's finding that plaintiff did not sustain a fracture as that term is defined in Insurance Law 5102(d) is one that reasonably could have been rendered upon the conflicting evidence adduced at trial ( see McLoughlin v. Hamburg Cent. School Dist., 227 A.D.2d 951, lv denied 88 N.Y.2d 813). There was conflicting testimony whether plaintiff sustained a fracture and the jury was free to reject the testimony of plaintiff's expert witness ( see Vasilatos v. Chatterton, 135 A.D.2d 1073, 1074). Thus, we agree with defendant that the court erred in setting aside the verdict. A fortiori, the court erred in determining, as a matter of law, that plaintiff sustained a serious injury as a result of the accident ( see Reynolds v. Burghezi, 227 A.D.2d 941, 942).
The court also erred in striking those portions of the testimony of defendant's expert witness concerning a November 1998 CT scan. The expert's testimony concerning that CT scan was "`not so inconsistent with the information and opinions contained [in the expert witness disclosure], nor so misleading, as to warrant preclusion of the expert testimony or reversal'" ( Andaloro v. Town of Ramapo, 242 A.D.2d 354, 355, lv denied 91 N.Y.2d 808, quoting Hageman v. Jacobson, 202 A.D.2d 160, 161). Finally, we conclude that the court did not abuse its discretion in granting that part of plaintiff's motion seeking reimbursement for plaintiff's expert witness fees ( see De Laurentis v. Bercowitz, 27 A.D.2d 869, 870). We therefore modify the order by denying those parts of the motion of plaintiff seeking to set aside the verdict, for judgment notwithstanding the verdict on liability, and for an order striking portions of the testimony of defendant's expert witness, by reinstating the verdict and by vacating the third ordering paragraph granting a trial on damages.