DeSimone v. Royal GM, Inc.

By failing to move for a directed verdict pursuant to CPLR 4401 on the issue of whether the plaintiff sustained a “serious injury” under Insurance Law § 5102 (d), the defendants implicitly conceded that the issue was for the trier of fact (see 491 Miller v Miller, 68 NY2d 871, 873 [1986]; Hurley v Cavitolo, 239 AD2d 559 [1997]). Furthermore, the jury verdict finding, inter alia, that the plaintiff sustained a “significant limitation of use of a body function or system” should not be set aside as against the weight of the evidence, as it could have been reached on a fair interpretation of the evidence (see Bendersky v M & O Enters. Corp., 299 AD2d 434, 435 [2002]). Lastly, the jury award of damages for the plaintiffs rotator cuff injury and herniated cervical disc did not deviate from what would be reasonable compensation (see CPLR 5501; Severin v Benenati, 251 AD2d 316, 317 [1998]). Ritter, J.P., Florio, Garni and Leventhal, JJ., concur.