Patricia Mendoza v Allstate Insurance Company

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Mendoza v Allstate Ins. Co. 2004 NY Slip Op 09606 [13 AD3d 594] December 27, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 23, 2005

Patricia Mendoza, Respondent,
Allstate Insurance Company, Appellant.

—[*1]In an action to recover damages under the uninsured motorist provision of an insurance policy, the defendant appeals from a judgment of the Supreme Court, Kings County (Lewis, J.), dated June 27, 2003, which, upon a jury verdict awarding the plaintiff damages in the sums of $100,000 for past pain and suffering and $50,000 for future pain and suffering, is in favor of the plaintiff and against it in the principal sum of $150,000.

Ordered that the judgment is modified, on the law and in the interests of justice, by deleting the provision thereof awarding the plaintiff the principal sum of $150,000 and substituting therefor a provision awarding the plaintiff the principal sum of $50,000; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for the entry of an appropriate amended judgment accordingly.

The evidence was legally sufficient (see Cohen v Hallmark Cards, 45 NY2d 493 [1978]) to support the jury's finding that the plaintiff sustained a significant limitation of use of a body function or system, thereby constituting a serious injury within the meaning of Insurance Law § 5102 (d).

However, the judgment must be modified by reducing the award of damages to the maximum amount permitted by the subject contract of insurance, to wit, $50,000.

The defendant's remaining contentions are without merit. S. Miller, J.P., Krausman, Spolzino and Lifson, JJ., concur.