Jackson v Kubashy

[*1] Jackson v Kubashy 2007 NY Slip Op 50744(U) [15 Misc 3d 135(A)] Decided on April 9, 2007 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 9, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKEON, P.J., DAVIS, KLEIN HEITLER, JJ
570001/07.

Juanita Jackson, Plaintiff-Respondent,

against

Morris A. Kubashy, Defendant-Appellant.

Defendant appeals from a judgment of the Civil Court of the City of New York, Bronx County (Howard H. Sherman, J.), entered August 16, 2005, after a jury trial, in favor of plaintiff and awarding her damages in the aggregate amount of $250,000, and from an order (same court and Judge), entered December 19, 2005, which denied defendant's motion to set aside the verdict.

PER CURIAM:

Judgment and order (Howard H. Sherman, J.), entered August 16, 2005 and December 19, 2005 respectively, affirmed, with $25 costs.

The jury's verdict that plaintiff suffered a serious injury resulting in permanent consequential limitation of the use of her neck and lower back (Insurance Law §5102[d]) comports with the weight of the evidence. The MRI films, EMG results and the credible testimony of plaintiff and her medical expert provided a sufficient evidentiary basis for a fact finder to reasonably conclude that the December 1999 vehicular accident proximately caused a chronic, permanent condition, including multiple bulging discs, nerve root damage and an objective, quantified decrease in the range of motion of plaintiff's spine (see Sow v. Arias, 21 AD3d 317 [2005]). The conflicting evidence offered by defendant's medical experts merely created triable issues of fact and credibility for the jury to resolve. The court properly exercised its discretion in permitting plaintiff's medical expert to testify.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: April 09, 2007