| Jun Suk Seo v Walsh |
| 2011 NY Slip Op 01619 [82 AD3d 710] |
| March 1, 2011 |
| Appellate Division, Second Department |
| Jun Suk Seo, Respondent, v Edward A. Walsh, Appellant,et al., Defendants. |
—[*1] Sim & Park, LLP, New York, N.Y. (Sang J. Sim of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant Edward A. Walshappeals from an order of the Supreme Court, Queens County (Nelson, J.), entered October 7,2009, which granted the plaintiff's motion pursuant to CPLR 4404 (a) to set aside a jury verdictin favor of him and granted a new trial on the issue of serious injury.
Ordered that the order is affirmed, with costs.
Following a trial, a jury found that the plaintiff did not sustain a serious injury within themeaning of Insurance Law § 5102 (d). The plaintiff moved, pursuant to CPLR 4404 (a), toset aside the verdict as contrary to the weight of the evidence, and based on allegedlyinflammatory and highly prejudicial remarks made by the defense counsel in summation. Thedefendant Edward A. Walsh (hereinafter the defendant) opposed both grounds for setting asidethe verdict. The Supreme Court concluded that defense counsel's summation remarks improperlyinfluenced the jury, granted the plaintiff's motion to set aside the verdict on the ground that theinflammatory and highly prejudicial remarks warranted a new trial on the issue of serious injuryin the interest of justice, and granted a new trial on the issue of serious injury. Consequently, theSupreme Court did not address the plaintiff's contention that the jury verdict was contrary to theweight of the evidence.
Contrary to the plaintiff's contention and the conclusion of the Supreme Court, defensecounsel's summation comments were not so inflammatory or prejudicial as to deprive theplaintiff of a fair trial (cf. McArdle vHurley, 51 AD3d 741 [2008]; Vassura v Taylor, 117 AD2d 798 [1986]).
On appeal, however, the plaintiff urges us to consider, as an alternative ground foraffirmance, his contention that the jury verdict on the issue of serious injury was contrary to theweight of the evidence, and that a new trial should be held on that issue (see Parochial BusSys. v Board of Educ. of City of N.Y., 60 NY2d 539 [1983]). Since that issue was arguedbefore the Supreme Court, and has been briefed by the parties before us, we address the plaintiff'salternative contention that the jury verdict on the issue of serious injury was contrary to theweight of the evidence, and [*2]affirm the order on thisalternative ground.
"To set aside a jury verdict as against the weight of the evidence, it must be concluded thatthe evidence so preponderated in favor of the movant that the verdict could not have beenreached on any fair interpretation of the evidence" (Scudera v Mahbubur, 39 AD3d 620, 620 [2007]; see Lolik vBig V Supermarkets, 86 NY2d 744, 746 [1995]; Nicastro v Park, 113 AD2d 129,134 [1985]).
At trial, the plaintiff's treating neurologist, Dr. Hal Gutstein, testified that, as a result of thesubject car accident, the plaintiff sustained a cervical radiculopathy due to herniated disks at theC4-C5 and C5-C6 levels, which impinged upon the plaintiff's spinal cord. Dr. Gutstein opinedthat, as a result of the accident, the plaintiff sustained a flexion/extension injury to the cervicalregion of his spine of a magnitude sufficient to cause disk herniations at two levels. The plaintiffunderwent a discectomy, a procedure in which his herniated disks were cut out and abiomechanical device was inserted into his spine to stabilize it. Furthermore, Dr. Gutsteinexamined the plaintiff approximately one year after the discectomy, and found that the plaintiffhad significant limitations in the range of motion of the cervical region of his spine. Specifically,Dr. Gutstein concluded that the flexion of the cervical region of the plaintiff's spine was 45degrees, with 75 degrees being the normal range of motion; his extension was 10 degrees, with30 degrees being normal; and his rotation was 25 degrees, with 45 degrees being normal.
Moreover, Dr. Gutstein opined that the plaintiff would have chronic symptoms, which wouldnever resolve, and that the restrictions in the movement of the plaintiff's neck were permanent. Inaddition, Dr. Ksushik Das, who performed the discectomy on the plaintiff, testified that theplaintiff's injuries were permanent.
The defendant presented the testimony of Dr. Sang Lee, a specialist in physical medicine andrehabilitation, who examined the plaintiff in May and December of 1999, in connection with a1999 car accident in which the plaintiff was involved. Dr. Lee determined that the plaintiff's neckwas stiff, with limited range of motion. In addition, Dr. Lee testified that the plaintiff hadpost-traumatic cervical sprain and strain, a disk herniation at L5-S1, disk protrusions at L4-L5,and S1 radiculopathy. Further, Dr. Lee stated that the plaintiff's prognosis was guarded and thatthe plaintiff had a permanent partial disability.
Dr. Renan Macias, a neurologist, examined the plaintiff in June and July of 1999. Dr. Maciasfound decreased range of motion of the cervical and lumbosacral regions of the plaintiff's spine,right shoulder, and arm. In addition, Dr. Macias noted a decreased sensation in the plaintiff's arm,which, according to Dr. Macias, indicated herniation or bulging of the cervical nerve root.
Dr. Leon Sultan, a board-certified orthopedic surgeon, also testified on behalf of thedefendant. Dr. Sultan examined the plaintiff in October 2007 in connection with the subject caraccident, which occurred in August 2006, and found that the subject car accident did not result ina significant limitation of the use of a body function or system, or a permanent consequentiallimitation of the use of a body organ or member. Dr. Sultan did not believe that the plaintiff hadherniated disks; rather, according to Dr. Sultan, MRI films revealed the presence of mere bulges.
Significantly, none of the defendant's witnesses rebutted the plaintiff's showing that heunderwent a discectomy, or provided any testimony that the discectomy was unnecessary.
Under these circumstances, we conclude that the jury's verdict—that the plaintiff didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d)—couldnot have been reached on any fair interpretation of the evidence (see Scudera vMahbubur, 39 AD3d at 621; Nicastro v Park, 113 AD2d at 134).
Accordingly, the Supreme Court properly granted the plaintiff's motion pursuant to CPLR4404 (a) to set aside the jury verdict on the issue of serious injury, but should have done so on theground that the verdict was contrary to the weight of the evidence, and should have granted anew trial on that basis. Dickerson, J.P., Hall, Austin and Cohen, JJ., concur.