                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: October 23, 2014                     517347
________________________________

KATIE B. BENSON,
                      Respondent,
     v                                        MEMORANDUM AND ORDER

JODIE A. VARMETTE,
                    Appellant.
________________________________


Calendar Date:   September 8, 2014

Before:    McCarthy, J.P., Rose, Egan Jr., Devine and Clark, JJ.

                               __________


      Bouvier Partnership, LLP, Buffalo (Norman E.S. Greene of
counsel), for appellant.

     William L. Nikas, Hudson Falls, for respondent.

                               __________


Rose, J.

      Appeals (1) from an order of the Supreme Court (Krogman,
J.), entered November 20, 2012 in Warren County, which denied
defendant's motion to set aside a verdict, and (2) from the
judgment of said court, entered August 2, 2013 in Warren County,
upon a verdict rendered in favor of plantiff.

      In this action to recover for personal injuries allegedly
sustained in a motor vehicle accident, defendant stipulated to
liability and the matter proceeded to trial on the issues of
whether plaintiff sustained a serious injury pursuant to
Insurance Law § 5102 (d) and damages. Supreme Court denied
defendant's motion for a directed verdict and the jury concluded
that plaintiff had sustained a serious injury, awarding her
$100,000 for over four years of past pain and suffering and
$400,000 for future pain and suffering covering 52.4 years.
                              -2-                517347

Defendant unsuccessfully moved to set aside the verdict on the
grounds of juror misconduct and excessive damages, and now
appeals from both the order denying her posttrial motion and the
final judgment.

      In our view, plaintiff submitted sufficient evidence from
which the jury could rationally conclude that she sustained a
significant limitation of the use of her cervical spine. She
presented expert medical evidence from Charles Gordon, her pain
management physician, supported by objective tests and imaging
studies, that the accident caused muscle spasms in her neck,
reduced curvature of her cervical spine, crepitus, injury to her
facet joints and a bone spur. Gordon opined that the accident
caused a cervical spine injury that resulted in 50% limitation of
plaintiff's ability to push, pull, sit, reach and perform her
activities of daily living. Gordon's expert testimony was
supplemented by testimony from plaintiff's physical therapist
that he also detected muscle spasms in her neck in the months
following the accident, as well as plaintiff's own testimony
about her continuing headaches and their debilitating effects.
Based on the objective findings, Gordon related plaintiff's
continuing headaches to the accident and concluded that her
limited mobility and pain was permanent in nature and would
progressively worsen. Affording plaintiff every favorable
inference, there was evidence upon which the jury could conclude
that she sustained a serious injury to her cervical spine under
the significant limitation of use category and Supreme Court
properly denied the motion for a directed verdict (see Martin v
Fitzpatrick, 19 AD3d 954, 956-957 [2005]; Jones v Davis, 307 AD2d
494, 496 [2003], lv dismissed 1 NY3d 566 [2003]).1



    1
        While there was insufficient evidence to support a
conclusion that plaintiff was prevented from performing
substantially all of her customary daily activities for 90 of the
first 180 days following the accident, plaintiff needed only to
establish that she sustained a serious injury in one of the
statutory categories in order to be entitled to recover all
damages proximately caused by the accident (see Kelley v Balasco,
226 AD2d 880, 880 [1996]).
                              -3-                  517347

      As for the award of damages, we cannot conclude that it is
excessive. In view of the nature, extent and duration of
plaintiff's injuries, and the continuing treatment that she must
endure, the jury's award does not deviate materially from what
would be reasonable compensation (see Martin v Fitzpatrick, 19
AD3d at 958; Jones v Davis, 307 AD2d at 497-498). Nor do we find
error in the denial of defendant's motion to set aside the
verdict on the basis of juror misconduct. Defendant claimed,
based on speculation and hearsay, that the jury foreperson failed
to disclose that she knew plaintiff's mother and improperly
affected the deliberations in plaintiff's favor. In light of the
lack of any evidence, however, that the foreperson intentionally
withheld pertinent information during voir dire or that her
purported relationship with plaintiff's mother had any impact on
deliberations, we find no abuse of discretion in Supreme Court's
summary denial of the motion to set aside the verdict based on
juror misconduct (see Remillard v Louis Williams, Inc., 59 AD3d
764, 766 [2009]; Matter of Buchanan, 245 AD2d 642, 646 [1997], lv
dismissed 91 NY2d 957 [1998]).

     McCarthy, J.P., Egan Jr., Devine and Clark, JJ., concur.



      ORDERED that the order and judgment are affirmed, with
costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
