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

471
CA 11-02024
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, AND MARTOCHE, JJ.


ADAM R. STEARNS AND KATHLEEN STEARNS,
PLAINTIFFS-APPELLANTS,

                      V                           MEMORANDUM AND ORDER

IRENE O’BRIEN, DEFENDANT-RESPONDENT.
(APPEAL NO. 2.)


CHARLES A. HALL, ROCHESTER, FOR PLAINTIFFS-APPELLANTS.

LAW OFFICE OF KEITH D. MILLER, LIVERPOOL (KEITH D. MILLER OF COUNSEL),
FOR DEFENDANT-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Ontario County
(Craig J. Doran, A.J.), entered January 21, 2011 in a personal injury
action. 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 contend on appeal that Supreme Court
erred in denying their motion to set aside the verdict of no cause of
action, finding that Adam R. Stearns (plaintiff) did not sustain a
serious injury. Previously, we affirmed an order that denied those
parts of defendant’s motion for summary judgment dismissing the
complaint with respect to the permanent consequential limitation and
significant limitation of use categories of serious injury as defined
by Insurance Law § 5102 (d) (Stearns v O’Brien, 77 AD3d 1383). We
note that plaintiffs met their burden at trial by submitting the
requisite objective proof that plaintiff was injured as a result of
the accident. Nevertheless, we agree with defendant that the jury was
entitled to conclude that the injury was nothing more than “a mild,
minor, or slight limitation of use” (King v Johnston, 211 AD3d 907,
907; see Gaddy v Eyler, 79 NY2d 955, 957).




Entered:    April 27, 2012                      Frances E. Cafarell
                                                Clerk of the Court
