BARNES v. KOCISZEWSKI

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.

Memorandum: Plaintiffs commenced this action to recover damages for injuries sustained by Lomax Barnes (plaintiff) as a result of an automobile accident. Supreme Court properly granted in part plaintiffs' motion pursuant to CPLR 4404(a) to set aside the jury verdict of no cause of action and granted a new trial on the issue whether plaintiff sustained economic loss in excess of basic economic loss ( see Insurance Law § 5102 [a]; § 5104 [a]). The court's error in foreclosing the jury from considering that issue unless it found that plaintiff sustained a serious injury ( see § 5102 [d]) warrants a new trial ( see Tortorello v. Landi, 136 A.D.2d 545, 546; see generally Montgomery v. Daniels, 38 N.Y.2d 41, 47-48; 1A N.Y. PJI3d 381 [2004]). Contrary to defendants' contention, plaintiffs made a sufficient showing that plaintiff sustained economic loss in excess of basic economic loss to warrant submission of the issue to the jury.