            SUPREME COURT OF THE STATE OF NEW YORK
              Appellate Division, Fourth Judicial Department

658
CA 13-01539
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, SCONIERS, AND DEJOSEPH, JJ.


JESSICA SANCHEZ, PLAINTIFF-APPELLANT,
ET AL., PLAINTIFF,

                     V                                MEMORANDUM AND ORDER

MARY E. DAWSON AND BIRNIE BUS SERVICE, INC.,
DEFENDANTS-RESPONDENTS.
(APPEAL NO. 1.)


BRINDISI, MURAD, BRINDISI & PEARLMAN, LLP, UTICA (STEPHANIE A. PALMER
OF COUNSEL), FOR PLAINTIFF-APPELLANT.

BREEDLOVE & NOLL, LLP, CLIFTON PARK (CARRIE MCLOUGHLIN NOLL OF COUNSEL),
FOR DEFENDANTS-RESPONDENTS.


     Appeal from a judgment of the Supreme Court, Oneida County (Bernadette
T. Clark, J.), entered December 28, 2012. The judgment dismissed the
complaint upon a verdict of no cause of action.

     It is hereby ORDERED that the judgment so appealed from is unanimously
affirmed without costs.

     Memorandum: Plaintiffs commenced this action to recover damages
for injuries sustained by Jessica Sanchez (plaintiff) when her vehicle
was rear-ended by a vehicle driven by defendant Mary E. Dawson, an employee
of defendant Birnie Bus Service, Inc. A jury subsequently determined
that plaintiff did not sustain a serious injury under the significant
disfigurement, permanent consequential limitation of use, significant
limitation of use, or 90/180-day categories of Insurance Law ' 5102 (d).
 Contrary to plaintiff=s contention, Supreme Court properly denied her
motion to set aside the verdict inasmuch as the jury fairly interpreted
the evidence in finding that plaintiff did not sustain a serious injury.

      The standard for determining whether a verdict should be set aside
is whether Athe evidence so preponderate[d] in favor of the [plaintiff]
that [the verdict] could not have been reached on any fair interpretation
of the evidence@ (Lolik v Big V Supermarkets, 86 NY2d 744, 746 [internal
quotation marks omitted]). Thus, a verdict should not be set aside unless
it is A >palpably irrational= @ (Quigley v Sikora, 269 AD2d 812, 813) or
A >palpably wrong= @ (Mohamed v Cellino & Barnes, 300 AD2d 1116, 1117, lv
denied 99 NY2d 510). ATo conclude as a matter of law that a jury verdict
is not supported by sufficient evidence, there must be >no valid line of
reasoning and permissible inferences which could possibly lead rational
[persons] to the conclusion reached by the jury on the basis of the evidence
                                    -2-                                 658
                                                                CA 13-01539

presented at trial= @ (Mazzella v Capobianco, 27 AD3d 532, 532). We also
note that, in evaluating a jury verdict, we accord A >great deference .
. . to the fact-finding function of the jury, [which] is in the foremost
position to assess witness credibility= @ (Guthrie v Overmeyer, 19 AD3d
1169, 1170).

     Contrary to plaintiff=s contention, a fair interpretation of the
evidence supports the jury=s determination that a postaccident surgical
scar on her neck does not constitute a significant disfigurement (see
San George v Prowse, 259 AD2d 988, 989). A significant disfigurement
exists if a reasonable person viewing the plaintiff=s body in its altered
state regards Athe condition as unattractive, objectionable, or the
subject of pity or scorn@ (Heller v Jansma, 103 AD3d 1160, 1161; see Loiseau
v Maxwell, 256 AD2d 450, 450). Here, the subject scar, which the jury
and the court had an opportunity to view in its entirety, is approximately
four inches in length, and we perceive no basis for disturbing the jury=s
determination with respect thereto.

     Contrary to plaintiff=s further contention, with respect to the
remaining categories of serious injury, we conclude that the jury was
entitled to credit the testimony of defendants= witnesses and reject the
testimony of plaintiff=s witnesses (see Guthrie, 19 AD3d at 1170; Betit
v Weeden, 251 AD2d 930, 932). Indeed, the record establishes that
plaintiff=s physicians and expert witnesses were unaware of certain facts
that could have impacted their opinions, including a subsequent motor
vehicle accident and a college physical education class. With respect
to the physical education class, defendants presented the testimony of
plaintiff=s former physical education teacher who noted that, after the
accident, plaintiff participated in both cardiovascular fitness and
strength training, knowledge of which may have affected the opinions of
her witnesses on the issue of the extent of plaintiff=s claimed injuries.
 Inasmuch as plaintiff=s physicians and expert witnesses acknowledged
that, if the history as provided to them by plaintiff was inaccurate or
incomplete, then their opinions might be inaccurate or incomplete, we
conclude that the jury=s determinations with respect to the remaining
categories of serious injury constitute a fair interpretation of the
evidence and were not A >palpably irrational= @ (Quigley, 269 AD2d at 813).
 Even assuming, arguendo, that plaintiff established a prima facie case
of serious injury, the jury nevertheless was entitled to reject the
opinions of plaintiff=s physicians and expert witnesses (see Brennan v
Bauman & Sons Buses, 107 AD2d 654, 655).

     In view of our determination, we see no need to address plaintiff=s
remaining contention.




Entered:   August 8, 2014                           Frances E. Cafarell
                                                    Clerk of the Court
