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A complainant urges, without seeming precedent, that the converse is also justified.


A complainant urges, without seeming precedent, that the converse is also justified. That, when, as a matter of law, the threshold has been reached, under one or more of the definitions of the Insurance Law, that courts are under a similar obligation to remove the question of threshold compliance, from a jury’s consideration, thus, leaving only assessments of damage.

Following a concession of liability, the issue of damage was tried before the court and a jury. At the close of evidence, the accused renewed its motion to dismiss for the complainant’s failure to prove a legitimate case, in not satisfying the threshold requirements; it was denied. The court then charged four qualification definitions under the Insurance Law. The accused excepted to the charge of any definition other than the 90-180 day disability option. The complainant agreed in advance with the courts charge, and thereafter raised no exception to it. After reception of a unanimous jury verdict, for the accused, the complainant moved orally, to set aside the verdict, as being totally against the weight of the credible evidence, and that no question of fact existed as to serious injury, which should have permitted the jury to determine that the threshold requirements under the Insurance Law had not been satisfied. Post-trial memoranda were requested and received.

Specifically, there was evidence, and a concession, that the complainant, a New York City Housing Authority Police Officer was absent from work for a period of 96 days. The evidence was accompanied by the medical testimony of both a treating orthopedist and psychiatrist. Together it is contended, that this qualified the complainant’s injuries as serious, under the following definition option of the Insurance Law or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the customary daily activities for not less than ninety (90) days during the one hundred eighty (180) days immediately following the occurrence of the injury or impairment.

The accused urges denial, first, on the grounds that the complainant never requested the direction of a verdict on the threshold issue, nor excepted to the court’s threshold charge. The questions of fact existed concerning the qualification of a serious injury which were properly referred to and decided by the jury.

The complainant’s attorneys, in reply, contend that they were remiss in not excepting to the court’s charge, and not requesting that the threshold issue be decided by the court as a matter of law. The error did not relieve the court of its responsibility to make such a decision based on the evidence that was presented during the trial. The attorneys conclude, that in the interests of justice, regardless of the action of counsel that the verdict should be set aside.

When an error in a charge is fundamental to the outcome of the case, a trial court has the power to review its own charge, even though it was not objected to nor any exception noted, or even though the charge was requested or acquiesced in. That is, where the trial court failed for any reason to explain adequately the applicable principles of law, a new trial should be ordered in the interests of justice.

Pursuant to such reasoning, the court will permit the complainant, upon this post-trial application, to question the propriety of its charge, regardless of any contrary position taken upon trial, by the complainant.

The Civil Practice Law and Rules authorizes the court, either by motion of any party, or on its own initiative, to order a new trial in the interest of justice. It is predicated on the assumption that the Judge who presides at trial is in the best position to evaluate errors therein. The Trial Judge must decide whether substantial justice has been done, whether it is likely that the verdict has been affected and must look to his own common sense, experience and sense of fairness rather than to precedents in arriving at a decision. The power conferred upon a court to order a new trial is discretionary in nature.

Burden of Proof has a divided significance. It might be said that there is not one but two distinct burdens of proof–wrapped up in one. First is the burden of initial satisfaction requires the production of a sufficient quantum and quality of evidence as demanded by law. In the type of case on trial, to satisfy the judge that the claim is of such probability, the jury could reasonably find a verdict for the party producing evidence. Meeting the initial burden results in the establishment of a legitimate case, failure should result in dismissal, or a directed verdict. The second burden of proof is in reality the burden of persuading the trier of fact that based upon the evidence, that the claim possesses a required degree of convincing probability. When it is not present, the verdict must be against the party, upon whom the burden rests. The judge alone determines whether the burden of initial satisfaction or production of evidence has been met, while the jury, or the judge when sitting as the trier of facts, decides whether the burden of persuasion has been reached.

The burden of initial satisfaction or production of evidence fluctuates with the requirements of substantive law (judicial precedent or statute) in a particular type of case. The quantum of evidence is accordingly set differently. However, the burden of persuasion upon proponent must always be by a preponderance of the evidence, in favor of the claim, as required by law, in a particular type of case.

The common law standards of what is required to initially satisfy the burden of producing evidence and then to persuade, regarding damage to persons injured in automobile accidents, has been modified by the Legislature through the enactment of the No-Fault Law.

Section of the Insurance Law sets forth an objective verbal definition of serious injury to significantly reduce the number of automobile personal injury accident cases litigated in the courts, and thereby help contain the no fault premium.

Serious injury means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

The Legislature intended that the court should decide the threshold question of whether the evidence would warrant a jury finding that the injury falls within the class of injuries that, under no-fault, should be excluded from judicial remedy. If it can be said, as a matter of law, the complainant suffered no serious injury within the meaning of the Insurance Law, then the complainant has no claim to assert and there is nothing for the jury to decide.

While it is clear that the Legislature intended to allow the complainants to recover for non-economic injuries in take over cases, it had also intended that the court first determine whether or not a legitimate case of serious injury has been established which would permit a complainant to maintain a common-law cause of action in tort. Thus, to the extent that the Legislature has abrogated a cause of action, the issue is one for the court in the first instance where it is properly raised, to determine whether the complainant has established a legitimate case of sustaining serious injury. The purpose of the No-Fault Law is to assure prompt and full compensation for economic loss by curtailing costly and time-consuming court trials. It would seem logical that motions for a partial judgment or partial verdict in reliance upon the Insurance Law should be encouraged, by either the complainant or the accused, at any stage of a proceeding. That is, any procedural application would take the case out of the jury’s hands and place it with the courts. The first would be a motion for summary judgment, relying on papers, the second and third relying upon evidence and testimony utilizing.

The law is meant to protect people and make sure that those who are at fault will be apprehended. When we become injured, we are not only physically harmed but emotionally and financially as well. If you believe that you should pursue a lawsuit against your offender, call the office of Stephen Bilkis and Associates to speak with the Queens Medical Malpractice Lawyers or the Queens Injury Attorneys.

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