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Supreme Court, Appellate Division, First Department, New York.

Amber Lee LAMANNA, Plaintiff-Appellant, v. Joseph JANKOWSKI, et al., Defendants-Respondents.

Decided: June 17, 2008

LIPPMAN, P.J., SAXE, GONZALEZ, NARDELLI, JJ. Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac of counsel), for appellant. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York (Jamie C. Kulovitz of counsel), for Joseph Jankowski, respondent. Camacho Mauro & Mulholland LLP, New York (Kathleen M. Mulholland of counsel), for Diakaite Ousseine and France Croissant, Ltd., respondents.

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] ).