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

Frank W. HOFFMAN, et al., respondents, v. S.J. HAWK, INC., et al., appellants.

Decided: February 22, 1999

CORNELIUS J. O'BRIEN, J.P., DAVID S. RITTER, WILLIAM C. THOMPSON and GLORIA GOLDSTEIN, JJ. Cheven, Keely & Hatzis, New York, N.Y. (Thomas Torto of counsel), for appellants. Angelo A. Giordano, Brooklyn, N.Y., for respondents.

In an action to recover damages for personal injuries, etc., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Polizzi, J.) dated January 7, 1998, as denied that branch of their motion which was to set aside the verdict on the issue of damages pursuant to CPLR 4404(a) and to either award them judgment as a matter of law or direct a new trial on the issue of damages.

ORDERED that the order is reversed insofar as appealed from, with costs, that branch of the motion which was to set aside the verdict on the issue of damages is granted, and the matter is remitted to Supreme Court, Queens County, for a new trial on the issue of damages.

As a result of a motor vehicle accident, the plaintiff Frank W. Hoffman allegedly sustained a torn meniscus and chondromalacia of his left knee requiring arthroscopic surgery, and allegedly suffered bulging discs in his lower back resulting in lumbar radiculopathy and paresthesia of his left thigh.

 Considering the nature of the injuries alleged and the proof adduced at trial, which was on the issue of damages only, the court erred when it failed to submit to the jury a special verdict sheet containing a two-part interrogatory requiring a determination of (1) whether the accident caused injury to the injured plaintiff's knee, and (2) whether the accident caused the injured plaintiff's bulging discs (see, Velez v. Svehla, 229 A.D.2d 528, 645 N.Y.S.2d 842;  Behan v. Data Probe Intl., 213 A.D.2d 439, 440, 623 N.Y.S.2d 886;  Steidel v. County of Nassau, 182 A.D.2d 809, 813, 582 N.Y.S.2d 805).

 Since there is to be a new trial, we note that the court should have submitted the issue of serious injury to the jury for a special finding (see, Porcano v. Lehman, 255 A.D.2d 430, 680 N.Y.S.2d 590;  Brown v. Stark, 205 A.D.2d 725, 613 N.Y.S.2d 705;  Small v. Zelin, 152 A.D.2d 690, 691, 544 N.Y.S.2d 27).

The defendants' remaining contentions are either academic in light of our determination or without merit.


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