Luppino v. Busher

In a negligence action to recover damages for personal [500] injuries, etc., plaintiffs appeal from a judgment of the Supreme Court, Westchester County (Stolarik, J.), entered March 31, 1982, which was in favor of the defendants on the ground that the infant plaintiff did not suffer injury within the meaning of subdivision 4 of section 671 of the Insurance Law, after a special verdict that the injuries did not constitute a significant disfigurement. Judgment reversed, on the facts, and new trial granted, with costs to abide the event. Although the issue of whether physical injury is “serious”, within the meaning of subdivision 4 of section 671 of the Insurance Law, is ordinarily a question of fact to be determined by the jury (see, e.g., Simone v Streeben, 56 AD2d 237, 239), the special verdict in this case was against the weight of the credible evidence. Accordingly, a new trial is granted (see Graham v Pokur Packing, 49 AD2d 938). Mollen, P. J., Weinstein and Rubin, JJ., concur.