Kalina v. Mendez

In an action to recover damages for personal injuries, etc., the defendants appeal from a judgment of the Supreme Court, Kings County (Schneier, J.), entered June 1, 1999, which, upon a jury verdict on the issue of liability finding them 60% at fault and the plaintiff Ilan Kalina 40% at fault in the happening of the accident, and awarding damages in the amount of $22,500, and the denial of their motion pursuant to CPLR 4401, made at the close of evidence, for judgment in their favor as a matter of law, is in favor of the plaintiffs and against them in the principal sum of $13,500 (60% of $22,500). Ordered that the judgment is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed. The Supreme Court erred when it denied the defendants’ motion at the close of the evidence for judgment in their favor as a matter of law. The plaintiffs failed to present evidence sufficient to demonstrate that the injured plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d) (see, Gaddy v Eyler, 79 NY2d 955; Lebreton v New York City [204] Tr. Auth., 267 AD2d 211; Jean-Mehu v Berbec, 215 AD2d 440; cf., Quaglio v Tomaselli, 99 AD2d 487). Mangano, P. J., Santucci, Krausman, Florio and Schmidt, JJ., concur.