Thrall v. City of Syracuse

• Decision Date: 11 July 1983
• Docket Number: No. 1,1
• Citation: Thrall v. City of Syracuse, 464 N.Y.S.2d 1022, 96 A.D.2d 715 (N.Y. App. Div. 1983)
• Parties: James C. THRALL, Jr., Respondent-Appellant, v. CITY OF SYRACUSE and Robert T. Thornton, Appellants-Respondents. Appeal
• Court: New York Supreme Court — Appellate Division

Page 1022

464 N.Y.S.2d 1022

96 A.D.2d 715

James C. THRALL, Jr., Respondent-Appellant, v. CITY OF SYRACUSE and Robert T. Thornton Appellants-Respondents. Appeal No. 1.

Supreme Court of New York, Appellate Division Fourth Department.

July 11, 1983

David M. Garber, Corp. Counsel by Robert Jenkins, Syracuse, for appellants-respondents. G. Robert McAllister, Syracuse, for respondent-appellant.

Order affirmed with costs to plaintiff.

All concur, except MOULE, J., who dissents and votes to reverse, in the following Memorandum:

Plaintiff was injured in January 1979 when the car he was driving was struck by a snow plow owned by defendant City of Syracuse and driven by defendant Thornton. Plaintiff was taken to the hospital by ambulance, but was released shortly after being examined. Plaintiff subsequently brought this negligence action seeking noneconomic damages for injuries sustained in the accident. At trial plaintiff testified that he experienced considerable pain following the accident and that his arm was locked in a crooked position. The day after the accident plaintiff went to see Dr. Baker, an orthopedic surgeon. Plaintiff testified that, at the time of trial, he had regained most of the movement in his arm. Dr. Baker testified at trial that plaintiff had sustained a bruised arm, a muscle strain in his left shoulder, and a possible stretching of nerve tissues leading from the neck to the shoulder. Dr. Baker stated that, when he examined plaintiff in March 1979, he noted "some weakness" in plaintiff's arm muscles, but found him to be "functioning in all areas." At a subsequent examination in April 1979, Dr. Baker noted that plaintiff had a full range of motion. The jury returned a verdict for plaintiff in the amount of $125,000. Defendants moved pursuant to CPLR 4404 to set aside the verdict on the ground that plaintiff did not sustain a "serious injury" within the meaning of subdivision 4 of section 671 of the Insurance Law and that the verdict was excessive. The court granted defendants' motion to set aside the verdict as excessive unless plaintiff, within 30 days, agreed to accept $30,000 in full satisfaction of his judgment. Defendants' motion was otherwise denied. A person who is injured as the result of the negligent operation of a motor vehicle may not recover for noneconomic loss except in the case of a "serious injury" (Insurance Law, § 673, subd. 1). A "serious injury" is defined as "a personal injury which results in * * *...