LINDQUIST v. KNOWLEDGE SYSTEMS RESEARCH INC (2002)

Defendants appeal from a judgment entered upon a jury verdict awarding plaintiff damages for injuries that she sustained in a motor vehicle accident in September 1995.   Supreme Court erred in denying defendants' motion seeking to set aside the verdict on the ground that, as a matter of law, plaintiff failed to establish that she sustained a serious injury under Insurance Law § 5102(d).  The verdict is based upon the jury's finding that a herniated disc at the L5/S1 level resulted in a permanent consequential limitation of use of a body organ or member (see id.).   Plaintiff, however, failed to prove that her back injury “was both permanent and consequential” (Kordana v. Pomellito, 121 A.D.2d 783, 784, 503 N.Y.S.2d 198, appeal dismissed 68 N.Y.2d 848, 508 N.Y.S.2d 425, 501 N.E.2d 33).   The evidence presented at trial establishes that surgery in July 1996 was successful and that plaintiff received no further treatment after June 1997.   The evidence further establishes that plaintiff no longer experiences pain from the herniated disc and has resumed her normal daily activities.   We therefore reverse the judgment, grant defendants' motion and dismiss the complaint.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.

MEMORANDUM: