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Herniated Disc not “Serious Injury”—Insufficient Proof of Physical Limitations.

The Second Department reversed the trial court’s denial of a motion pursuant to CPLR 4404 to set aside the jury verdict.  The issue was whether the plaintiff had proven he sustained “serious injury” within the meaning of Insurance Law 5102(d).  The plaintiff had a bulging or herniated disk but did not provide objective proof of the extent or degree of the alleged physical limitations caused by the disc injury. In describing the criteria for analysis, the Court wrote:  “ ‘A motion pursuant to CPLR 4404(a) to set aside a jury verdict and for judgment as a matter of law will be granted where there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusions reached by the jury on the basis of the evidence presented at trial…’ “.  Bacon v Bostany, 2011-08654, 2012-07634, Index No 997/08, Second Dept. 3-6-13

 

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