Perez v. Rousseau

• Decision Date: 05 February 1993
• Docket Number: No. 1,A-B,1
• Citation: 190 A.D.2d 1040,594 N.Y.S.2d 477
• Parties: Lucy PEREZ, Appellant, v. Didier X. ROUSSEAU andetter Car Rental Co., Inc., Respondents. Appeal
• Court: New York Supreme Court — Appellate Division

Page 477

594 N.Y.S.2d 477

190 A.D.2d 1040

Lucy PEREZ, Appellant, v. Didier X. ROUSSEAU and A-Better Car Rental Co., Inc.,

Respondents. Appeal No. 1.

Supreme Court, Appellate Division,

Fourth Department.

Feb. 5, 1993.

Grossman, Levine & Civiletto by Samual Civiletto, Niagara Falls, for appellant.

Grosse, Rossetti, Chelus & Herdzik, P.C. by Lowell Grosse, Buffalo, for respondents, Didier X. Rousseau and A-Better Car Rental Co., Inc.

Before DENMAN, P.J., and PINE, BALIO, FALLON and DAVIS, JJ.

MEMORANDUM:

Plaintiff was involved in an automobile accident with defendant Rousseau on August 11, 1986, and with defendant Hobler on February 18, 1987. She commenced two separate actions, alleging that she had suffered a serious injury. The actions were tried together and the jury returned a verdict in favor of defendants, finding that plaintiff had not sustained a serious injury. Plaintiff's motion to set aside the verdict was denied. She appeals from that order and from the judgments dismissing her complaints and contends that the jury's finding was against the weight of the evidence. We disagree.

The existence of a serious injury is generally a matter for the jury's determination (Kupfer v. Dalton, 169 A.D.2d 819, 565 N.Y.S.2d 188; Bader v. Santana, 106 A.D.2d 858, 483 N.Y.S.2d 143; Luppino v. Busher, 97 A.D.2d 499, 468 N.Y.S.2d 17). The jury's verdict should not be set aside as against the weight of the evidence "unless it is palpably wrong and there is no fair interpretation of the evidence to support the jury's conclusion (Montana v. Smith, 92 A.D.2d 732 or if the verdict is one which reasonable persons could have rendered after receiving conflicting evidence (Harris v. Armstrong, 97 AD2d 947, , affd[,] 64 NY2d 700 [485 N.Y.S.2d 523, 474 N.E.2d 1191]" (Petrovski v. Fornes, 125 A.D.2d 972, 973, 510 N.Y.S.2d 366, lv. denied 69 N.Y.2d 608, 514 N.Y.S.2d 1026, 507 N.E.2d 322). We must review the evidence in the light most favorable to the party prevailing at trial (see, Matter of Kornblum Metals Co. v. Intsel Corp., 38 N.Y.2d 376, 379, 379 N.Y.S.2d 826, 342 N.E.2d 591; Robillard v. Robbins, 168 A.D.2d 803, 805, 563 N.Y.S.2d 940, aff'd 78 N.Y.2d 1105, 578 N.Y.S.2d 126, 585 N.E.2d 375) and should set aside the verdict only if it is wholly irrational (see, Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145, on remand, 70 A.D.2d 509, 415 N.Y.S.2d 657; Restey v. Victory Mkts., 127 A.D.2d 987, 512 N.Y.S.2d 938, lv. denied Y69 N.Y.2d 613, 517 N.Y.S.2d 1029, 511 N.E.2d 88).

The jury's conclusion that plaintiff did not suffer a serious injury is not irrational. Plaintiff presented no proof of permanent loss of use of a body function or system and did not sustain any injury to a body organ or member (see, Daviero v. Johnson, 110 Misc.2d 381, 441 N.Y.S.2d 895, aff'd 88 A.D.2d...