LAMANNA v. JANKOWSKI (2008)

Order, Supreme Court, Bronx County (Nelson S. Roman, J.), entered January 26, 2007, which, in an action for personal injuries sustained in a motor vehicle accident, inter alia, granted defendants' motion to set aside the jury verdict rendered in plaintiff's favor, and directed judgment in defendants' favor as a matter of law, unanimously reversed, on the law and the facts, without costs, and the matter remanded for a new trial.

The jury found that as a result of the motor vehicle accident, plaintiff sustained “a permanent consequential limitation of use of a body organ or member” (Insurance Law § 5102[d] ), yet failed to award any damages for future pain and suffering.   Since the failure to award such damages cannot be reconciled with a finding of permanent injury, retrial is mandated on all issues as there is a strong likelihood that the verdict results from a trade-off on a finding of liability in return for a compromise on damages (see McKenna v. Lehrer McGovern Bovis, 302 A.D.2d 329, 330, 756 N.Y.S.2d 181 [2003];  Patrick v. New York Bus Serv., 189 A.D.2d 611, 612, 592 N.Y.S.2d 311 [1993] ).