Montfort, Healy, McGuire & Salley LLP



Winter 2017 E-Newsletter

Montfort, Healy, McGuire & Salley LLP Successfully Defends Personal Injury Action on Appeal

Donald S. Neumann, Jr. of Montfort, Healy, McGuire & Salley LLP successfully defended a New York automobile accident claim in New York Supreme Court's Appellate Division, Second Department.

After suffering injuries in an automobile accident in Queens, New York, the plaintiff, was authorized by his insurance company to settle his claim against the tortfeasor. After settling his claim, the plaintiff commenced an action against the insurance company to recover damages for personal injury pursuant to the under-insured endorsement of his policy with the company. The action led to a jury trial at which the insurance company conceded liability. Therefore, the jury was asked to determine only whether the plaintiff met the serious injury threshold as defined by insurance law to obtain damages. The jury found that the plaintiff did not sustain an injury under the statutory threshold required for damages. After the decision, the plaintiff moved to set aside the verdict as contrary to the weight of the evidence and for a new trial. The motion was denied, and a judgment was entered in favor of the insurance company.

The Plaintiff appealed the decision stating that the Supreme Court incorrectly denied the motion to set the verdict aside. In representing the insurance company Mr. Neumann argued that the Supreme Court correctly denied the plaintiff’s motion, and this was evidenced by the fact the plaintiff did not object to the charge as given, or to the verdict sheet. In addition, the Plaintiff did not move for a directed verdict, and therefore they conceded the fact that the question of fact should have been left to the jury. Mr. Neumann further argued that the jury’s verdict was not against the weight of the evidence.

The court found that the plaintiff’s injury came after he was presented to the rehabilitation facility for services following a knee replacement. The plaintiff alleged that the licensed physical therapist was not in the room, and instead was just her aide. While the defendant disputed this claim, the court found that regardless the question was not a sufficient question of fact to survive the motion to dismiss. The court determined that if the physical therapist left the patient alone in the room with the aide then that would go to the adequacy and supervision of the training of the aide and be related to the medical services.

The appellate court agreed with Mr. Neumann in holding: “A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached its verdict on any fair interpretation of the evidence” see Lolik v. Big v. Supermarkets, 86 N.Y.2d 744, 746. The court found that the jury’s finding was based on a fair interpretation of the evidence submitted at trial, and therefore affirmed the trial court’s decision.

The decision from the Second Department Appellate Division can be found here.

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Practice Areas

Product Liability

Construction and Industrial Accidents

Professional Liability Claims

Insurance Coverage

Federal Civil Rights Claims

Personal Injury Claims Arising Out of Motor Vehicle Accidents

Homeowners' Claims

Commercial Premises Personal Injury Claims

Medical Malpractice

Hospital Liability Administrative Law

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