Smith v. Mouawad

— Appeal (1) from a judgment of the Supreme Court in favor of defendants, entered December 21, 1981 in Rensselaer County, upon a verdict rendered at . Trial TermXConway, J.), and (2) from an order of said court, entered November 10,1981 in Rensselaer County, which denied plaintiff’s motion to set aside the verdict. Plaintiff was injured when the vehicle in which he was a passenger and which was driven by defendant, Majid Mouawad, went out of control, left the road and struck a utility pole. Plaintiff sustained a head injury which required suturing. Plaintiff’s injuries resulted in scarring largely obscured by his hairline. He sustained a 30 to 40% permanent hair loss in the area of the scarring and suffers from a sensitivity to hot and cold. After trial, the court directed a verdict in plaintiff’s favor on the question of negligence and submitted a special question to the jury as to whether plaintiff had sustained a serious injury which resulted in significant disfigurement pursuant to subdivision 4 of section 671 of the Insurance Law. The jury found “no” on the special question and a verdict was entered for defendants. Plaintiff urges that the trial *701court erred in not directing a verdict for him on the issue of “significant disfigurement”. In view of the nature of the injury sustained by plaintiff and the testimony relative thereto, the court properly permitted the issue of serious injury to be decided by the jury as a question of fact (cf. Licari v Elliott, 57 NY2d 230). Plaintiff also contends that the jury’s verdict is contrary to the weight of evidence. We disagree. The testimony in the record and the jury’s viewing of plaintiff’s injuries were sufficient to support the jury’s verdict. Judgment and order affirmed, without costs. Mahoney, P. J., Kane, Casey, Mikoll and Levine, JJ., concur.