Coho v. McNeil Construction Co.

— In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Marbach, J.), entered April 8, 1985, which is in favor of the defendants and against him, upon a jury verdict that he did not suffer a “serious injury” as defined in Insurance Law former § 671 (4) (now § 5102 [d]). Judgment affirmed, without costs or disbursements. The jury was at liberty to accept or reject the plaintiff’s medical testimony (see, Brennan v Bauman & Sons Buses, 107 AD2d 654). Although the plaintiff’s medical testimony was uncontroverted, it was, at the very least, equivocal with respect to the issue of whether the limitation of the use of the plaintiff’s thumb was consequential or significant. Accordingly, on the record before us we cannot say that the original trier 104 of fact has assessed the evidence incorrectly (see, Cohen v Hallmark Cards, 45 NY2d 493, 498). A fortiori, the plaintiff did not establish that he suffered a "serious injury” as defined in Insurance Law former § 671 (4) as a matter of law, nor can it be said that the verdict in the defendant’s favor and against him was against the weight of the evidence. Niehoff, J. P., Rubin, Eiber and Kooper, JJ., concur.