The Third Department, in a full-fledged opinion by Justice Clark, over a dissent, reversing Supreme Court, determined plaintiff had proved at trial that he suffered a serious injury within the meaning of Insurance Law 5102 (d) and was therefore entitled to the jury’s damages award. Plaintiff was unloading his car when defendant’s car struck plaintiff’s, which then struck plaintiff. Plaintiff came out of his shoes and was thrown to the sidewalk. He was knocked unconscious, suffered a gash on the back of his head, and suffered a concussion. Plaintiff presented evidence at trial of traumatic brain injury with cognitive loss. The trial judge had granted defendant’s motion to set aside the verdict and dismissed the complaint, finding the evidence of serious injury insufficient:
Notwithstanding the negative scans, the absence of neurological testing and the subjectivity of plaintiff’s complaints, many of plaintiff’s reported symptoms, including his impaired concentration and balance and difficulty with problem solving and word retrieval, were objectively and personally observed by plaintiff’s primary care physician, who had the necessary historical knowledge and ability to compare his clinical, postaccident observations of plaintiff’s condition to his prior observations of plaintiff’s preaccident condition … . Contrary to the dissent’s assertion, the primary care physician’s treatment and assessment of plaintiff’s injuries were also informed by his review of the medical records of the rehabilitation psychologist and plaintiff’s physical and occupational therapists, which documented their objective observations of plaintiff’s physical and cognitive deficiencies and limited improvements over a period of nearly two years. Moreover, the bases for the primary care physician’s qualitative assessment of the seriousness of plaintiff’s injury, including his observations of plaintiff’s preaccident and postaccident conditions, as well as the accuracy of his memory, could “be tested during cross-examination, challenged by another expert and weighed by the trier of fact” … .
In our view, the comparative determination of plaintiff’s primary care physician, taken together with plaintiff’s defined head wound and subjective complaints immediately after the accident and continuing four years later, provided the jury with a valid line of reasoning and permissible inferences that could lead it to the rational conclusion that plaintiff suffered a permanent consequential limitation of use of a body organ or member and a significant limitation of use of a body function or system … . Rodman v Deangeles, 2017 NY Slip Op 01260, 3rd Dept 2-16-17
INSURANCE LAW (EVIDENCE WAS SUFFICIENT TO SUPPORT THE JURY’S FINDING PLAINTIFF’S HEAD INJURY WAS A SERIOUS INJURY WITHIN THE MEANING OF INSURANCE LAW 5102, SUPREME COURT REVERSED)/NO-FAULT (EVIDENCE WAS SUFFICIENT TO SUPPORT THE JURY’S FINDING PLAINTIFF’S HEAD INJURY WAS A SERIOUS INJURY WITHIN THE MEANING OF INSURANCE LAW 5102, SUPREME COURT REVERSED)/SERIOUS INJURY (NO-FAULT INSURANCE, EVIDENCE WAS SUFFICIENT TO SUPPORT THE JURY’S FINDING PLAINTIFF’S HEAD INJURY WAS A SERIOUS INJURY WITHIN THE MEANING OF INSURANCE LAW 5102, SUPREME COURT REVERSED)