Donovan v. DeCloux

Order unanimously affirmed without costs. Memorandum: In this action seeking noneconomic loss for injuries sustained in an automobile accident on December 27, 1980, the trial court properly submitted to the jury the issue of whether plaintiff sustained a serious injury as defined by Insurance Law § 5102 (d) (see, Licari v Elliott, 57 NY2d 230, 237). We discern no basis to disturb the jury’s determination that plaintiff did not suffer such an injury. The only medical proof on this issue offered at trial came from Dr. Yu, a neurologist, who first examined plaintiff more than four years after the accident. Dr. Yu’s diagnosis that plaintiff had sustained a herniated lumbar disc as a result of the accident was made following a myelogram in May of 1988. Significantly, Dr. Yu’s finding conflicted with that made in the radiologist’s report of the same myelogram study. Because we conclude that the jury’s determination was based on a fair interpretation of the evidence, we reject plaintiff’s contention that the verdict was against the weight of the evidence (see, Martin v Seaman, 184 AD2d 996). (Appeal from Order of Niagara County Court, Hannigan, J. — Negligence.) Present— Denman, P. J., Balio, Lawton, Fallon and Doerr, JJ.