Mordino v. Sutch

• Decision Date: 31 December 1998
• Citation: 682 N.Y.S.2d 753,256 A.D.2d 1062
• Parties: 1998 N.Y. Slip Op. 11,788 Danielle MORDINO, Respondent, v. Beverly J. SUTCH, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 753

682 N.Y.S.2d 753

1998 N.Y. Slip Op. 11,788

Danielle MORDINO, Respondent, v. Beverly J. SUTCH, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

Dec. 31, 1998.

Saperston & Day, P.C. by Karen Kaczmarski, Buffalo, for defendant-appellant.

Dempsey & Dempsey by Helen Dempsey (John M. Dempsey, of counsel), Buffalo, for plaintiff-respondent.

Present: DENMAN, P.J., HAYES, WISNER, CALLAHAN and BOEHM, JJ.

MEMORANDUM:

On October 6, 1993, plaintiff, a 19-year-old college student, was injured in an automobile accident. Defendant concedes liability. Plaintiff went to a hospital that day where X rays were taken and she was given pain medication, muscle relaxants and a soft collar neck brace to wear. She was seen by her family physician, took medication for pain and had some physical therapy. Because her symptoms persisted, in March 1994 she underwent an MRI, which revealed disc bulges at C3-4 and C4-5 and most significantly at C5-6. She continues to take pain medication and anti-inflammatory drugs and uses a heating pad and cervical pillows for sleeping. Since the accident, she has had limited range of motion in her neck, pain and difficulty sleeping.

The sole issue at trial was whether plaintiff sustained a serious injury within the meaning of the No-Fault Law (Insurance Law § 5102[d] ). The jury found that as a result of the accident she did not sustain a significant limitation of use of a body function or system, nor did she sustain a permanent consequential limitation of use of a body organ or member.

Supreme Court did not abuse its discretion in granting plaintiff's motion to set aside the jury verdict as against the weight of the evidence (see, CPLR 4404[a]; Nicastro v. Park, 113 A.D.2d 129, 137, 495 N.Y.S.2d 184). There is uncontroverted proof in this record that an MRI of plaintiff's cervical spine reveals a disc herniation at C5-6. That is prima facie evidence of a serious injury within the meaning of the No-Fault Law (see, Insurance Law § 5102[d]; Florez v. Diaz, 243 A.D.2d 607, 663 N.Y.S.2d 620; Jackson v. United Parcel Serv., 204 A.D.2d 605, 612 N.Y.S.2d 186). Plaintiff's physicians testified that the accident was the competent producing cause of the ongoing symptoms and disability of plaintiff and that her condition is permanent. Furthermore, there is objective proof that plaintiff had a flattening of the normal curvature of the spine and limitation of motion. Defendant's expert did not refute the objective proof; his...