SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

90 

CA 14-00355 

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND DEJOSEPH, JJ. 

 

KAREN MARKS, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

MICHAEL ALONSO, DEFENDANT-APPELLANT. 

(APPEAL NO. 1.) 

 

BARTH SULLIVAN BEHR, BUFFALO (ANDREW J. KOWALEWSKI OF COUNSEL), FOR

DEFENDANT-APPELLANT.

SPADAFORA & VERRASTRO, LLP, BUFFALO (RICHARD E. UPDEGROVE OF COUNSEL),

FOR PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Erie County (James H.

Dillon, J.), entered November 19, 2013. The order, among other

things, ordered a new trial on the issues of serious injury and

damages. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action for personal

injuries arising out of a motor vehicle accident with defendant. In

appeal No. 2, defendant contends that Supreme Court erred in denying

his motion for summary judgment dismissing the complaint on the ground

that plaintiff did not sustain a serious injury within the meaning of

Insurance Law § 5102 (d). We reject that contention. Even assuming,

arguendo, that defendant met his initial burden on his motion, we

conclude that plaintiff raised an issue of fact in opposition with

respect to three categories of serious injury, i.e., the permanent

consequential limitation of use, the significant limitation of use,

and the 90/180-day categories, by “submitting objective proof of

[muscle] spasm[s] in [her] cervical spine . . . , and proof showing

quantitative restrictions in the range of motion in [her] cervical

spine” (Siemucha v Garrison, 111 AD3d 1398, 1399). 

Following trial, the jury issued a verdict finding that the

accident was not a substantial factor in causing plaintiff’s injuries. 

In appeal No. 1, defendant appeals from an order in which the court

granted plaintiff’s posttrial motion to set aside the jury verdict,

found that defendant was negligent and that such negligence was a

substantial factor in causing plaintiff’s injuries, and ordered a new

trial on the issues of serious injury and damages. Defendant contends

that the proof submitted at trial established that the accident was
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CA 14-00355 

not a substantial factor in causing plaintiff’s injuries, and that the

jury’s verdict should not have been disturbed. We reject that

contention. “[T]he determination of the trial court to set aside a

jury verdict . . . must be accorded great respect . . . and, where the

court’s determination is not unreasonable, we will not intervene to

reverse that finding” (American Linen Supply Co. v M.W.S. Enters., 6

AD3d 1079, 1080, lv dismissed 3 NY3d 702 [internal quotation marks

omitted]). We conclude that the court’s determination is not

unreasonable. The proof at trial from both parties established that

the accident proximately caused plaintiff to sustain at least a

cervical strain. Thus, “the evidence with regard to proximate cause

so preponderated in plaintiff’s favor that the jury could not have

reached its conclusion [of no proximate cause] based on any fair

interpretation of it” (Ernst v Khuri, 88 AD3d 1137, 1139; see Herbst v

Marshall, 89 AD3d 1403, 1403). 

Entered: February 13, 2015 Frances E. Cafarell

Clerk of the Court