Opinion
Argued September 7, 1999
November 1, 1999
Hobbes Tonetti (Sweetbaum Sweetbaum, Lake Success, N Y [Marshall D. Sweetbaum] of counsel), for appellants Mordechai Friedfertig and Barry Friedfertig.
Forchelli, Schwartz, Mineo, Carlino Cohn, Mineola, N Y (William J. Fitzpatrick of counsel), for appellant Gary Viscomi.
Charles J. Sclafani (Anthony C. Pasca, Deer Park, N.Y., of counsel), for respondent.
LAWRENCE J. BRACKEN, J.P., GABRIEL M. KRAUSMAN, LEO F. McGINITY, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
In an action to recover damages for personal injuries, the defendants Mordechai Friedfertig and Barry Friedfertig, and Gary Viscomi, separately appeal from an order of the Supreme Court, Suffolk County (Seidell, J.), entered August 19, 1998, which, upon a jury verdict on the issue of liability finding the defendants at fault in the happening of the accident, and upon a verdict on the issue of damages finding, in effect, that the plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102(d) , granted the plaintiff's motion to set aside the verdict on the issue of damages and directed a new trial on that issue.
ORDERED that the order is reversed, on the law, with costs, the motion is denied, the verdict on the issue damages is reinstated, and the matter is remitted to the Supreme Court, Suffolk County, for entry of a judgment dismissing the complaint.
Contrary to the determination of the Supreme Court, the verdict on the issue damages in favor of the defendants was not against the weight of the evidence. Therefore, the Supreme Court should not have granted the plaintiff's motion to set aside the verdict on that issue (see, Otero v. Hyatt, 235 A.D.2d 407 ; Nicastro v. Park, 113 A.D.2d 129 ).
BRACKEN, J.P., KRAUSMAN, McGINITY, and SCHMIDT, JJ., concur.