Opinion
January 21, 1986
Appeal from the Supreme Court, Nassau County (Velsor, J., Roncallo, J.).
Judgment affirmed, with one bill of costs.
The infant plaintiff was injured in a school bus accident on February 26, 1981. At the trial on the issue of liability, plaintiffs presented sufficient proof of the bus driver's negligence to support the jury's verdict finding him and his employer, Veterans Transportation Co., at fault. Defendant County of Nassau contends that it was not liable for the accident (which the bus driver claimed occurred when the right front wheel of the bus hit a pothole causing a blowout), because it had no prior notice of the existence of the pothole. However, the bus driver testified that he had observed the pothole the day before the accident, contradicting the testimony of a county employee who claimed to have inspected the road on the morning of the accident and had failed to observe any potholes. Resolution of the witnesses' credibility was the jury's proper function and we see no basis for disturbing its conclusion (see, Taype v City of New York, 82 A.D.2d 648). The bus driver's testimony was sufficient to support a finding that the county had constructive notice of the pothole and had a duty, which it breached, to repair it (see, Harris v Village of East Hills, 41 N.Y.2d 446, 450; Gaines v Long Is. State Park Commn., 60 A.D.2d 724).
Plaintiffs' expert testified that the infant plaintiff suffered a compression "fracture of the T-8 vertebrae", a permanent, "pain-producing injury". Although defendant's experts disagreed with that diagnosis, the jury's resolution of the conflicting opinions of the experts must prevail (see, Felt v Olson, 51 N.Y.2d 977; Rametta v Kazlo, 68 A.D.2d 579). Plaintiffs' evidence adequately established "serious injury" as defined in Insurance Law § 5102 (d) and as found by the jury (see, Slack v Crossetta, 75 A.D.2d 809).
We find no errors in evidentiary rulings made by the trial court at the trial on damages, nor do we find the amount of damages awarded by the jury excessive (see, Juiditta v Bethlehem Steel Corp., 75 A.D.2d 126, 138). Thompson, J.P., Brown, Weinstein and Eiber, JJ., concur.