| Sanchez v Dawson |
| 2014 NY Slip Op 05724 [120 AD3d 933] |
| August 8, 2014 |
| Appellate Division, Fourth Department |
[*1]
| Jessica Sanchez, Appellant, et al., Plaintiff, v Mary E.Dawson et al., Respondents. (Appeal No. 1.) |
Brindisi, Murad, Brindisi & Pearlman, LLP, Utica (Stephanie A. Palmer ofcounsel), for plaintiff-appellant.
Breedlove & Noll, LLP, Clifton Park (Carrie McLoughlin Noll of counsel), fordefendants-respondents.
Appeal from a judgment of the Supreme Court, Oneida County (Bernadette T. Clark,J.), entered December 28, 2012. The judgment dismissed the complaint upon a verdict ofno cause of action.
It is hereby ordered that the judgment so appealed from is unanimously affirmedwithout costs.
Memorandum: Plaintiffs commenced this action to recover damages for injuriessustained by Jessica Sanchez (plaintiff) when her vehicle was rear-ended by a vehicledriven by defendant Mary E. Dawson, an employee of defendant Birnie Bus Service, Inc.A jury subsequently determined that plaintiff did not sustain a serious injury under thesignificant disfigurement, permanent consequential limitation of use, significantlimitation of use, or 90/180-day categories of Insurance Law § 5102 (d).Contrary to plaintiff's contention, Supreme Court properly denied her motion to set asidethe verdict inasmuch as the jury fairly interpreted the evidence in finding that plaintiffdid not sustain a serious injury.
The standard for determining whether a verdict should be set aside is whether "theevidence so preponderate[d] in favor of the [plaintiff] that [the verdict] could not havebeen reached on any fair interpretation of the evidence" (Lolik v Big vSupermarkets, 86 NY2d 744, 746 [1995] [internal quotation marks omitted]). Thus,a verdict should not be set aside unless it is " 'palpably irrational' "(Quigley v Sikora, 269 AD2d 812, 813 [2000]) or " 'palpablywrong' " (Mohamed v Cellino & Barnes, 300 AD2d 1116, 1117[2002], lv denied 99 NY2d 510 [2003]). "To conclude as a matter of law that ajury verdict is not supported by sufficient evidence, there must be 'no valid line ofreasoning and permissible inferences which could possibly lead rational [persons] to theconclusion reached by the jury on the basis of the evidence presented at trial' "(Mazzella v Capobianco, 27AD3d 532, 532 [2006]). We also note that, in evaluating a jury verdict, we accord" 'great deference . . . to the fact-finding function of the jury,[which] is in the foremost position to assess witness credibility' " (Guthrie v Overmyer, 19 AD3d1169, 1170 [2005]).
Contrary to plaintiff's contention, a fair interpretation of the evidence supports thejury's determination that a postaccident surgical scar on her neck does not constitute asignificant disfigurement (see San George v Prowse, 259 AD2d 988, 989[1999]). A significant disfigurement exists if a reasonable person viewing the plaintiff'sbody in its altered state regards "the condition as unattractive, objectionable or thesubject of pity or scorn" (Hellerv Jansma, 103 AD3d 1160, 1161 [2013]; see Loiseau v Maxwell, 256AD2d 450, 450 [1998]). Here, the subject scar, which the jury and the court had anopportunity to view in its entirety, is approximately four inches in length, and weperceive no basis for disturbing the jury's determination with respectthereto.
[*2] Contrary to plaintiff's furthercontention, with respect to the remaining categories of serious injury, we conclude thatthe jury was entitled to credit the testimony of defendants' witnesses and reject thetestimony of plaintiff's witnesses (see Guthrie, 19 AD3d at 1170; Betit vWeeden, 251 AD2d 930, 932 [1998]). Indeed, the record establishes that plaintiff'sphysicians and expert witnesses were unaware of certain facts that could have impactedtheir opinions, including a subsequent motor vehicle accident and a college physicaleducation class. With respect to the physical education class, defendants presented thetestimony of plaintiff's former physical education teacher who noted that, after theaccident, plaintiff participated in both cardiovascular fitness and strength training,knowledge of which may have affected the opinions of her witnesses on the issue of theextent of plaintiff's claimed injuries. Inasmuch as plaintiff's physicians and expertwitnesses acknowledged that, if the history as provided to them by plaintiff wasinaccurate or incomplete, then their opinions might be inaccurate or incomplete, weconclude that the jury's determinations with respect to the remaining categories of seriousinjury constitute a fair interpretation of the evidence and were not " 'palpablyirrational' " (Quigley, 269 AD2d at 813). Even assuming, arguendo, thatplaintiff established a prima facie case of serious injury, the jury nevertheless wasentitled to reject the opinions of plaintiff's physicians and expert witnesses (seeBrennan v Bauman & Sons Buses, 107 AD2d 654, 655 [1985]).
In view of our determination, we see no need to address plaintiff's remainingcontention. Present—Centra, J.P., Fahey, Peradotto, Sconiers and DeJoseph,JJ.