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Miller v. Miller

Appellate Division of the Supreme Court of New York, Second Department
Sep 19, 1988
143 A.D.2d 407 (N.Y. App. Div. 1988)

Opinion

September 19, 1988

Appeal from the Supreme Court, Orange County (Isseks, J.).


Ordered that the judgment dated January 4, 1983 is reversed, the interlocutory judgment entered April 9, 1984 and the judgment entered November 19, 1984 are vacated, and the matter is remitted to the Supreme Court, Orange County, for a new trial on the issue of whether the plaintiff sustained a "serious injury" under Insurance Law § 5102 (d), with costs to abide the event. The findings of fact as to damages are affirmed.

Upon reconsideration of the facts with respect to the issue of "serious injury", we conclude that the jury's verdict that the plaintiff did not suffer a permanent loss of use of a body function was against the weight of the evidence (see, Nicastro v Park, 113 A.D.2d 129). As we noted in our initial decision, the defendant did not dispute the testimony of the treating physician that the injury to the muscle around the plaintiff's lower lip caused a permanent loss of function.

The matter is therefore remitted for a new trial solely on the issue of "serious injury" since the defendant conceded liability. In the event the jury finds in the plaintiff's favor on the issue of serious injury, we see no need for a new trial on the issue of damages (see, e.g., Trimarco v Klein, 56 N.Y.2d 98; Schabe v Hampton Bays Union Free School Dist., 103 A.D.2d 418), and a judgment in favor of the plaintiff in the principal sum of $50,000 may be entered. Thompson, J.P., Kunzeman, Rubin and Eiber, JJ., concur.


Summaries of

Miller v. Miller

Appellate Division of the Supreme Court of New York, Second Department
Sep 19, 1988
143 A.D.2d 407 (N.Y. App. Div. 1988)
Case details for

Miller v. Miller

Case Details

Full title:KRISTIAN A. MILLER, an Infant, by His Guardian ad Litem, SUSAN S. MILLER…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Sep 19, 1988

Citations

143 A.D.2d 407 (N.Y. App. Div. 1988)

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