Burney v. Raba

• Decision Date: 01 November 1999
• Citation: 697 N.Y.S.2d 329,266 A.D.2d 174
• Parties: GWENDOLYN BURNEY, Respondent,<BR>v.<BR>STEPHEN RABA, Appellant. (And a Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

266 A.D.2d 174

697 N.Y.S.2d 329

GWENDOLYN BURNEY, Respondent,

v.STEPHEN RABA, Appellant. (And a Third-Party Action.)

Decided November 1, 1999.

S. Miller, J. P., Thompson, Krausman, Florio and Schmidt, JJ., concur.

Ordered that the appeal from the order is dismissed, without costs or disbursements; and it is further Ordered that the judgment is reversed, on the facts and as an exercise of discretion, with costs, and a new trial is granted on the issue of damages for past pain and suffering, unless within 30 days after service upon the plaintiff of a copy of this decision and order, with notice of entry, the plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Nassau County, a written stipulation consenting to decrease the verdict as to damages for past pain and suffering from the principal sum of $150,000 to the principal sum of $75,000, and to the entry of an appropriate amended judgment in the principal sum of $52,500 accordingly ($75,000 minus $22,500, the third-party defendant's share of liability); in the event that the plaintiff so stipulates, then the judgment, as so decreased and amended, is affirmed, without costs or disbursements, and the order dated January 21, 1999, is modified accordingly.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

A jury verdict may only be set aside as being against the weight of the evidence when the jury could not have reached its verdict on any fair interpretation of the evidence (see, Maisonaves v Friedman, 255 AD2d 494; Cavanaugh v Cosentino, 255 AD2d 413). Here, the testimony adduced by the sole expert at trial, the plaintiff's expert, clearly established a basis upon which the jury could have reasonably concluded that the plaintiff suffered "significant limitation of use of a body function or system" and the "permanent loss of use of a body organ, member, function or system" (Insurance Law § 5102 [d]; see, Cavanaugh v Cosentino, supra). The issue of the expert's credibility was solely within the province of the jury, which resolved that issue against the defendant (see, Rivera v Majuk, 263 AD2d 841). In addition, the expert's objective medical evidence was sufficient to support the finding...