Nitti v. Clerrico

Scudder and Lawton, JJ.

(dissenting). We respectfully dissent. The issue raised on this appeal by Josephine Clerrico and Joseph C. Clerrico (defendants) from a judgment entered upon a jury verdict for plaintiff is whether plaintiff established a prima facie case that she sustained a serious injury within the meaning of Insurance Law § 5102 (d). We conclude that she did not, because she failed to establish by objective medical evidence that she sustained a serious injury within the meaning of the statute (see, Brown v Wagg, 280 AD2d 891, 891-892, lv denied 96 NY2d 711). “To establish the…