| Handwerker v Dominick L. Cervi, Inc. |
| 2008 NY Slip Op 09753 [57 AD3d 615] |
| December 9, 2008 |
| Appellate Division, Second Department |
| mAmy Handwerker et al., Appellants-Respondents, v DominickL. Cervi, Inc., et al., Respondents-Appellants. |
—[*1] Rivkin Radler LLP, Uniondale, N.Y. (Evan Krinick, Cheryl F. Korman, and Harris J. Zakarin ofcounsel), for respondents-appellants.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment ofthe Supreme Court, Nassau County (Brandveen, J.), dated July 31, 2007, which, upon a jury verdicton the issue of damages finding that the plaintiff Amy Handwerker sustained a serious injury within themeaning of Insurance Law § 5102 (d) and sustained damages in the principal sum of $20,000 forpast pain and suffering, and upon the denial of their motion pursuant to CPLR 4404 (a) to set aside thedamages verdict as against the weight of the evidence and inadequate, and for a new trial on the issueof damages, awarded them the principal sum of only $20,000, and the defendants cross-appeal from somuch of the same judgment as, upon the denial of their motion pursuant to CPLR 4401 to dismiss thecomplaint and for judgment as a matter of law on the ground that the plaintiff Amy Handwerker did notsustain a serious injury within the meaning of Insurance Law § 5102 (d), made at the close of theplaintiffs' case, and renewed at the close of evidence, is in favor of the plaintiffs and against them in theprincipal sum of $20,000.
Ordered that the judgment is affirmed, without costs or disbursements.
A motion for judgment as a matter of law pursuant to CPLR 4401 may be granted only when thetrial court determines that, upon the evidence presented, there is no rational process by which the jurycould find in favor of the nonmoving party (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997];Hamilton v Rouse, 46 AD3d 514,516 [2007]). In considering such a motion, "the trial court must afford the party opposing the motionevery inference which may properly be drawn from the facts presented, and the [*2]facts must be considered in a light most favorable to the nonmovant"(Szczerbiak v Pilat, 90 NY2d at 556). Contrary to the defendants' contention, viewing thefacts in the light most favorable to the plaintiffs, the evidence was sufficient to establish that the plaintiffAmy Handwerker (hereinafter the plaintiff) sustained a medically determined injury or impairment whichprevented her from performing substantially all of the material acts which constituted her usual andcustomary activities for at least 90 out of the 180 days immediately following the accident, as set forthin Insurance Law § 5102 (d).
The standard for determining whether a jury verdict is against the weight of the evidence is whetherthe evidence so preponderated in favor of the movant that the verdict could not have been reachedupon any fair interpretation of the evidence (see Lolik v Big V Supermarkets, 86 NY2d 744,746 [1995]; Tapia v Dattco, Inc., 32AD3d 842 [2006]). When a verdict can be reconciled with a reasonable view of the evidence, thesuccessful party is entitled to the presumption that the jury adopted that view (see Tapia v Dattco,Inc., 32 AD3d at 842). Here, a fair interpretation of the evidence supports the jury's conclusionthat, based on the evidence before it, the plaintiff did not sustain a "significant limitation" or a "permanentconsequential limitation," within the meaning of Insurance Law § 5102 (d) as a result of thesubject motor vehicle accident.
The damages award for past pain and suffering did not materially deviate from what would beconsidered reasonable compensation (see CPLR 5501 [c]; Ruiz v Hart Elm Corp., 44 AD3d 842,844 [2007]). Skelos, J.P., Lifson, Covello and Balkin, JJ., concur.