Opinion
September 19, 1988
Appeal from the Supreme Court, Orange County (Isseks, J.).
Ordered that the judgment dated January 4, 1983 is reversed, the interlocutory judgment entered April 9, 1984 and the judgment entered November 19, 1984 are vacated, and the matter is remitted to the Supreme Court, Orange County, for a new trial on the issue of whether the plaintiff sustained a "serious injury" under Insurance Law § 5102 (d), with costs to abide the event. The findings of fact as to damages are affirmed.
Upon reconsideration of the facts with respect to the issue of "serious injury", we conclude that the jury's verdict that the plaintiff did not suffer a permanent loss of use of a body function was against the weight of the evidence (see, Nicastro v Park, 113 A.D.2d 129). As we noted in our initial decision, the defendant did not dispute the testimony of the treating physician that the injury to the muscle around the plaintiff's lower lip caused a permanent loss of function.
The matter is therefore remitted for a new trial solely on the issue of "serious injury" since the defendant conceded liability. In the event the jury finds in the plaintiff's favor on the issue of serious injury, we see no need for a new trial on the issue of damages (see, e.g., Trimarco v Klein, 56 N.Y.2d 98; Schabe v Hampton Bays Union Free School Dist., 103 A.D.2d 418), and a judgment in favor of the plaintiff in the principal sum of $50,000 may be entered. Thompson, J.P., Kunzeman, Rubin and Eiber, JJ., concur.