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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.

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