BEBRY v. FARKAS GALINDEZ (2000)

In an action to recover damages for personal injuries, the plaintiff appeals, on the ground of inadequacy, from a judgment of the Supreme Court, Nassau County (Joseph, J.), entered August 5, 1999, which, upon a jury verdict finding that he sustained no damages for future pain and suffering, and sustained damages in the amount of only $35,000 for past pain and suffering, is in his favor and against the defendants in the principal sum of $35,000.

ORDERED that the judgment is reversed, on the law, and a new trial is granted on the issue of damages only, with costs to abide the event.

 The plaintiff sustained a fractured foot and other injuries in an automobile accident.   During the damages trial, the Supreme Court charged the jury that the plaintiff sustained a fractured foot as a matter of law.   Since a fracture is included within the statutory definition of “serious injury” (see, Insurance Law § 5102[d];  Kolios v. Znack, 237 A.D.2d 333, 655 N.Y.S.2d 443), the Supreme Court erred in instructing the jury to determine, inter alia, whether the plaintiff sustained a permanent consequential limitation of his foot.

 Moreover, the Supreme Court erred in instructing the jury to determine whether the plaintiff's sternum was fractured and whether the plaintiff sustained a permanent consequential limitation of his sternum.  “If a plaintiff establishes a prima facie case that any one of several injuries that he or she sustained in an accident is a ‘serious injury’ within the meaning of Insurance Law § 5102(d), he or she is entitled to seek recovery for all injuries incurred as a result of the accident” (O'Neill v. O'Neill, 261 A.D.2d 459, 460, 690 N.Y.S.2d 277;  Preston v. Young, 239 A.D.2d 729, 731 n. *, 657 N.Y.S.2d 499;  Kelley v. Balasco, 226 A.D.2d 880, 640 N.Y.S.2d 652).   Under the circumstances, a new trial is required.

In light of this determination, we need not reach the plaintiff's remaining contentions.

MEMORANDUM BY THE COURT.