Duvivier v. Bruso

—In an action to recover damages for personal injuries, the defendant appeals from (1) a judgment of the Supreme Court, Rockland County (Weiner, J.), dated February 24, 1994, which, upon a jury verdict, is in favor of the plaintiff and against her in the sum of $46,004.79, and (2) an order of the same court, dated May 24, 1994, which, inter alia, denied the branch of her motion which was for judgment notwithstanding the verdict. Ordered that the judgment is reversed, on the law, and the complaint is dismissed; and it is further, Ordered that the appeal from the order is dismissed as academic in light of our determination on the appeal from the judgment; and it is further, Ordered that the defendant is awarded one bill of costs. The plaintiffs evidence showed that he suffered from a lum [412] bosacral sprain and some minor limitations of movement. However, his testimony failed to quantify either the pain he suffered or the limitations of movement. Under the circumstances of this case, the proof adduced by the plaintiff showed, at best, minor limitations on his use of a body function or system. Such is insufficient to permit a jury to find that there was a serious injury pursuant to Insurance Law § 5102 (d) (see, Gaddy v Elyer, 79 NY2d 955; Adams v Holy Spirit Assn. Unification of World Christianity, 216 AD2d 261; Cannizzaro v King, 187 AD2d 842). Thompson, J. P., Joy, Goldstein and Florio, JJ., concur.