PICON v. MOORE (2005)

Order, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered October 10, 2003, which denied defendants' motion for an order of judgment notwithstanding the jury's verdict, or for a mistrial, unanimously affirmed, without costs.

 Plaintiff was awarded $50,000 for past pain and suffering and $218,000 for future pain and suffering as a result of injuries sustained when his car was rear-ended by defendants' truck.   Contrary to defendants' contention, the jury's finding that plaintiff suffered a serious injury (Insurance Law § 5102[d] ) was supported by sufficient evidence and was not against the weight of the evidence.   Plaintiff's experts measured the quantitative loss of range of motion in plaintiff's neck.   Based on qualitative assessment, x-rays and an MRI (Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002] ), the experts also determined that the injuries resulted from the instant accident, and were permanent.   As the only evidence of the accident was plaintiff's own testimony, the trial court's refusal to submit a special verdict sheet to the jury was not improper because there was no basis upon which the jury could have made a finding of comparative fault (see Willis v. Young Men's Christian Assn., 28 N.Y.2d 375, 377-378, 321 N.Y.S.2d 895, 270 N.E.2d 717 [1971] ).   In light of the substantial reduction in range of motion suffered by plaintiff, even four years after the accident, as well as the five herniations, it cannot be said that the damage award deviated materially from reasonable compensation under the circumstances (compare Adams v. Romero, 227 A.D.2d 292, 642 N.Y.S.2d 673 [1996] ).

 Defendants expressly waived the inadvertent submission of an unadmitted police report to the jury during the first ten minutes of their deliberations, in return for a curative instruction by the court.   Indeed, the record shows that defendants expressly refused the trial court's offer of a mistrial in return for the curative instruction.