Opinion
September 17, 1973
In a negligence action to recover damages for personal injuries, defendant Callarota appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Nassau County, entered October 30, 1972, as set aside a jury verdict in his favor and granted plaintiffs a new trial as against him solely on the issues of damages. Judgment affirmed insofar as it granted said relief to plaintiff Mary Molinelli against defendant Callarota, with costs to said plaintiff to abide the event; judgment reversed insofar as it granted said relief to plaintiffs Aurelia Molinelli and Margaret Benevenuto against defendant Callarota, without costs, and verdict in favor of said defendant against said two plaintiffs reinstated; and case remitted to the trial court for entry of an appropriate amended judgment consistent herewith, including a provision for severance of the cause of plaintiff Mary Molinelli against defendant Callarota. In our opinion, a verdict of no damages or injury as to plaintiffs Aurelia Molinelli and Margaret Benevenuto was permissible upon the evidence presented. However, as to plaintiff Mary Molinelli such a verdict was against the weight of the credible evidence. Although the force of the impact upon this rear-end collision was disputed, much of Mary Molinelli's testimony as to injuries and treatment was corroborated by her neurologist; and defendant Callarota did not see fit to call his own medical expert, who examined her sometime prior to trial, as a witness. The neurologist's testimony might be subject to differing inferences in respect to whether the accident was the competent producing cause of all of this plaintiff's subsequent problems; but, since it is manifest upon the record that some injury was sustained, the verdict against her as to defendant Callarota cannot be permitted to stand ( Waldbillig v. Poitras, 29 A.D.2d 595; Farrell v. Klapach, 24 A.D.2d 590; Jensen v. Casale, 22 A.D.2d 994). Rabin, P.J., Hopkins, Munder, Martuscello and Latham, JJ., concur.