         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
43
CA 10-01445
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, GREEN, AND MARTOCHE, JJ.


LAI NGUYEN, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

WILLIAM E. KIRALY AND MARY L. KIRALY,
DEFENDANTS-RESPONDENTS.
(APPEAL NO. 2.)


COHEN & LOMBARDO, P.C., BUFFALO (JONATHAN D. COX OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

BURGIO, KITA & CURVIN, BUFFALO (HILARY C. BANKER OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from a judgment of the Supreme Court, Erie County (Frank
A. Sedita, Jr., J.), entered October 28, 2009 in a personal injury
action. The judgment dismissed the complaint.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law with costs, the post-trial motion is
granted in part, the verdict with respect to damages for past pain and
suffering is set aside, the complaint is reinstated, and a new trial
is granted on those damages only.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he allegedly sustained in a motor vehicle accident.
Following a trial, the jury found that plaintiff sustained a serious
injury under only the 90/180-day category of serious injury set forth
in Insurance Law § 5102 (d), but it awarded plaintiff zero damages.
Plaintiff moved to set aside the verdict in part and for a new trial
on damages only. According to plaintiff, the jury’s finding that he
did not sustain a serious injury under the significant limitation of
use category and its award of zero damages were against the weight of
the evidence. We conclude that Supreme Court erred in denying those
parts of the post-trial motion seeking to set aside the verdict with
respect to damages for past pain and suffering and for a new trial
thereon.

     It is well settled that “the amount of damages to be awarded for
personal injuries is primarily a question for the jury” (Nutley v New
York City Tr. Auth., 79 AD3d 711, 712 [internal quotation marks
omitted]), “the judgment of which is entitled to great deference based
upon its evaluation of the evidence, including conflicting expert
testimony” (Ortiz v 975 LLC, 74 AD3d 485, 486; Vaval v NYRAC, Inc., 31
                                 -2-                            43
                                                         CA 10-01445

AD3d 438, lv dismissed 8 NY3d 1020, rearg denied 9 NY3d 937).
Nevertheless, an award of damages may be set aside when it “deviates
materially from what would be reasonable compensation” (CPLR 5501 [c];
see Miller v Weisel, 15 AD3d 458, 459), and “a jury verdict will
generally be considered flawed when a serious injury under the No-
Fault Law is found or conceded, but the jury then makes no award for
[past] pain and suffering” (Zgrodek v McInerney, 61 AD3d 1106, 1108;
see Vogel v Cichy, 53 AD3d 877, 880; Gillespie v Girard, 301 AD2d
1018). For example, in Hayes v Byington ([appeal No. 2] 2 AD3d 1468,
1469), the jury found that the plaintiff sustained a serious injury
under the 90/180-day category but awarded damages only for lost wages,
and we concluded that the court erred in denying the plaintiff’s
motion to set aside the verdict except insofar as it found that the
plaintiff sustained a serious injury and for a new trial on damages
only. Here, we also conclude that “making no award for past pain and
suffering after [determining] that plaintiff sustained a serious
injury was a material deviation from reasonable compensation”
(Zgrodek, 61 AD3d at 1109). We therefore reverse the judgment, grant
the post-trial motion in part, set aside the verdict with respect to
damages for past pain and suffering, reinstate the complaint, and
grant a new trial on those damages only.

     We reject plaintiff’s contention that the court erred in denying
the post-trial motion with respect to damages for lost wages and
future pain and suffering. We also reject plaintiff’s contention that
the court erred in denying the post-trial motion with respect to the
significant limitation of use category of serious injury. “ ‘A jury
is not required to accept an expert’s opinion to the exclusion of the
facts and circumstances disclosed by other testimony and/or the facts
disclosed on cross-examination . . . Indeed, a jury is at liberty to
reject an expert’s opinion if it finds the facts to be different from
those [that] formed the basis for the opinion or if, after careful
consideration of all the evidence in the case, it disagrees with the
opinion’ ” (Cummings v Jiayan Gu, 42 AD3d 920, 922-923). Here, the
verdict with respect to the significant limitation of use category
“ ‘was based upon a fair interpretation of the evidence’ ” (Radish v
DeGraff Mem. Hosp., 291 AD2d 873, 874), including the surveillance
video of plaintiff several years after the accident, in which he was
depicted moving about with no apparent limitations or discomfort.




Entered:   March 25, 2011                       Patricia L. Morgan
                                                Clerk of the Court
