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NICK KERCU, app, v. ROSALINE M. ZIPPRICH, res

2013-801 Q C. NICK KERCU, app, v. ROSALINE M. ZIPPRICH, res — Weston, J., dissents and votes to affirm the judgment in the following memorandum:

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2013-801 Q C. NICK KERCU, app, v. ROSALINE M. ZIPPRICH, res — Weston, J., dissents and votes to affirm the judgment in the following memorandum:

The jury’s finding that plaintiff did not sustain a serious injury under the significant limitation of use and consequential limitation of use categories of Insurance Law §5102 (d) was supported by a valid line of reasoning or permissible inferences based on the evidence presented at trial (see Lolik v. Big v. Supermarkets, 86 NY2d 744 [1995]; Cohen v. Hallmark Cards, 45 NY2d 493 [1978]). Moreover, the verdict was not against the weight of the evidence (see Nicastro v. Park, 113 AD2d 129 [1985]). In my opinion, the trial judge fulfilled her function as gatekeeper by limiting the scope of Dr. Pitman’s expert testimony to plaintiff’s previous permanent injuries. Assuming, as the majority does, that the trial judge erred in permitting reference to these injuries, I conclude that any error was harmless, particularly in view of Dr. Pitman’s testimony that, based upon his own examination of plaintiff and his review of plaintiff’s medical records, he concluded that the accident in question* had not caused plaintiff’s injuries. The doctor opined that there had been a progressive deterioration of plaintiff’s spine and that the herniations and disc bulges were present before the accident at issue. Additionally, defendant’s radiologist testified that an MRI film which he had reviewed showed multiple levels of degenerative disc disease on plaintiff’s lumbar spine.

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