Kelley v. Balasco
| Decision Date | 11 April 1996 |
| Citation | 226 A.D.2d 880,640 N.Y.S.2d 652 |
| Parties | Luella KELLEY, Appellant, v. Douglas A. BALASCO et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Bohl, Della Rocca & Dorfman (James B. Tuttle of counsel), Albany, for appellant.
Petrone & Petrone P.C. (James P. Godemann of counsel), Utica, for respondents.
Before CARDONA, P.J., and MERCURE, CASEY, YESAWICH and SPAIN, JJ.
Appeal from a judgment of the Supreme Court (Keegan, J.), entered April 19, 1995 in Albany County, upon a verdict rendered in favor of plaintiff.
Plaintiff commenced this action to recover for whiplash-type injuries allegedly sustained in a May 27, 1992 automobile accident. Defendant conceded liability and the matter went to a jury on the questions of whether plaintiff sustained a "serious injury" as defined in Insurance Law § 5102(d) and damages. With regard to the question of whether plaintiff satisfied the no-fault threshold, Supreme Court submitted separate interrogatories on the following categories of serious injury: (1) permanent loss of use of a body organ, member, function or system, (2) significant limitation of use of a body function or system, (3) permanent consequential limitation of use of a body organ or member, and (4) a medically determined injury or impairment which prevented plaintiff from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment. The jury made a positive finding on only one of the categories, the fourth, and then proceeded to the issue of damages, awarding $25,000 for conscious pain and suffering up to the date of the verdict and no damages for future pain and suffering. Plaintiff moved to set aside the jury's negative findings on the first three categories of serious injury and the verdict with regard to damages for future pain and suffering. Supreme Court denied the motion and plaintiff now appeals.
We affirm. As a threshold matter, we conclude that plaintiff is not aggrieved by the jury's factual determination that she did not sustain a serious injury within any of the first three categories stated above. Fundamentally, a jury's finding that the plaintiff sustained an injury within any of the categories set forth in Insurance Law § 5102(d) satisfies the no-fault threshold, thereby eliminating that issue from the case and permitting the plaintiff to recover any damages proximately caused by the accident (see, Matula v. Clement, 132 A.D.2d 739, 740, 517 N.Y.S.2d 100, lv. denied 70 N.Y.2d 610, 522 N.Y.S.2d 110, 516 N.E.2d 1223; Prieston v. Massaro, 107 A.D.2d 742, 743-744, 484 N.Y.S.2d 104; but see, Wymer v. National Fuel Gas Distrib. Corp., 217 A.D.2d 920, 629...
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