Roper v. Con Edison Co. , 722 N.Y.S.2d 916 ( 2001 )

—In an action to recover damages for personal injuries, the defendants appeal from a judgment of the Supreme Court, Queens County (Schmidt, J.), entered January 26, 2000, which, upon a jury verdict finding that the plaintiff had sustained a serious injury within the meaning of Insurance Law § 5102 (d), is in favor of the plaintiff and against them.

Ordered that the judgment is reversed, on the law, and a new trial is granted, with costs to abide the event.

Under the circumstances of this case, the Supreme Court erred in the manner in which it permitted the plaintiffs orthopedist to testify concerning the plaintiffs quantified restrictions in the range of motion of the lumbar and cervical portions of his spine. Since the testimony was crucial in determining whether the plaintiff had sustained a serious injury within the meaning of Insurance Law § 5102 (d), a new trial is warranted (see, Hambsch v New York City Tr. Auth., 63 NY2d 723; Erosa v Rinaldi, 270 AD2d 384; Nuzzo v Castellano, 254 AD2d 265; Schwartz v Gerson, 246 AD2d 589). Altman, J. P., Krausman, H. Miller and Feuerstein, JJ., concur.