Opinion
January 5, 1995
Appeal from the Supreme Court, Broome County (Rose, J.).
In this action, plaintiffs seek to recover for injuries sustained by plaintiff Geraldine Ives (hereinafter plaintiff) in a November 30, 1990 automobile accident. It is undisputed that the accident occurred when defendant drove his vehicle into the rear of plaintiffs vehicle, which was stopped at a traffic light at the time. Defendant conceded liability, and a jury trial was conducted on the issue of damages. Following deliberations, the jury found that plaintiff had not sustained a serious injury and awarded only $158.40 to compensate for plaintiff's lost wages. Plaintiffs appeal.
We affirm. Initially, it is our view that Supreme Court did not abuse its broad discretion (see, Thompson v. Connor, 178 A.D.2d 752, 753, lv dismissed 80 N.Y.2d 826) in denying plaintiffs' motion, made four days prior to trial, to amend the complaint to assert a claim for punitive damages. Notably, the trial had been previously postponed and the note of issue stricken because of plaintiffs' day-of-trial motion to amend the complaint to assert a derivative cause of action, and plaintiffs offered no excuse for their obviously excessive delay in making the present application (see, F.G.L. Knitting Mills v. 1087 Flushing Prop., 191 A.D.2d 533, 534; Pellegrino v. New York City Tr. Auth., 177 A.D.2d 554, 557, lv denied 80 N.Y.2d 760). We also note that the claim for punitive damages, based upon defendant's intoxication and failure to brake or take evasive measures in an effort to avoid the accident, was of questionable merit (see, Taylor v. Dyer, 190 A.D.2d 902).
We also reject plaintiffs' assertions of error as they relate to the issue of whether plaintiff sustained a serious injury. Clearly, in the absence of evidence that any bone was broken, the fact that plaintiff suffered a deviated septum when her head struck the steering wheel did not support a finding that she sustained a fracture. Similarly, plaintiffs failed to competently establish that a fracture plaintiff sustained one month after the accident, when she twisted her ankle on an uneven area outside her house, was causally related to the events of November 30, 1990. We are of the further view that the evidence of soft-tissue injuries resulting in intermittent pain and a slight limitation of motion of plaintiff's back and neck by no means compelled a finding that plaintiff sustained a serious injury within any of the categories set forth in Insurance Law § 5102 (d) (see, e.g., Baker v. Donahue, 199 A.D.2d 661; Melino v. Lauster, 195 A.D.2d 653, affd 82 N.Y.2d 828; Lanuto v. Constantine, 192 A.D.2d 989, lv denied 82 N.Y.2d 654). Under the circumstances, we conclude that Supreme Court did not err in refusing to direct a verdict in favor of plaintiffs, in refusing to charge the jury that plaintiff's deviated septum constituted a fracture and in refusing to submit the issue of plaintiffs ankle injury to the jury. Finally, the jury's verdict was by no means against the weight of the evidence (see, Wierzbicki v. Kristel, 192 A.D.2d 906; Nicastro v. Park, 113 A.D.2d 129, 134). Plaintiffs' remaining contentions have been considered and are either unnecessary for resolution or without merit.
Cardona, P.J., White, Casey and Peters, JJ., concur. Ordered that the judgment is affirmed, with costs.