Opinion
2012-04-27
Adam R. STEARNS and Kathleen Stearns, Plaintiffs–Appellants, v. Irene O'BRIEN, Defendant–Respondent. (Appeal No. 2.)
Appeal from a judgment of the Supreme Court, Ontario County (Craig J. Doran, A.J.), entered January 21, 2011 in a personal injury action. The judgment dismissed the complaint upon a verdict of no cause of action.Charles A. Hall, Rochester, for plaintiffs-appellants. Law Office of Keith D. Miller, Liverpool (Keith D. Miller of Counsel), for defendant-respondent.
Appeal from a judgment of the Supreme Court, Ontario County (Craig J. Doran, A.J.), entered January 21, 2011 in a personal injury action. The judgment dismissed the complaint upon a verdict of no cause of action.Charles A. Hall, Rochester, for plaintiffs-appellants. Law Office of Keith D. Miller, Liverpool (Keith D. Miller of Counsel), for defendant-respondent.
MEMORANDUM:
Plaintiffs contend on appeal that Supreme Court erred in denying their motion to set aside the verdict of no cause of action, finding that Adam R. Stearns (plaintiff) did not sustain a serious injury. Previously, we affirmed an order that denied those parts of defendant's motion for summary judgment dismissing the complaint with respect to the permanent consequential limitation and significant limitation of use categories of serious injury as defined by Insurance Law § 5102(d) ( Stearns v. O'Brien, 77 A.D.3d 1383, 908 N.Y.S.2d 318). We note that plaintiffs met their burden at trial by submitting the requisite objective proof that plaintiff was injured as a result of the accident. Nevertheless, we agree with defendant that the jury was entitled to conclude that the injury was nothing more than “a mild, minor, or slight limitation of use” ( King v. Johnston, 211 A.D.2d 907, 907, 621 N.Y.S.2d 402; see Gaddy v. Eyler, 79 N.Y.2d 955, 957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.