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CPLR 4404(a… cont

In the first instance, and contrary to the defendants’ contention, the notice of claim was sufficient to enable the defendants to investigate the allegations contained therein. The notice of claim was sufficient for the defendant to locate the place, fix the time, and understand the nature of the accident. Further, there is no merit to the defendants’ contention that the plaintiff changed his theory of recovery from a claim that he was hit by a bus designated as number 9167, as set forth in the notice of claim, to a generalized claim at trial that he was merely hit by a bus. The theory propounded by the plaintiff at trial, and as charged to the jury, was that the plaintiff was hit by a bus operated by JA, and that the particular bus operated by Arroyo was designated as number 9167. Accordingly, the plaintiff did not rest his action on a theory that was not asserted in the notice of claim.

Additionally, we reject the defendants’ contentions that, based on the evidence adduced at trial, the jury’s findings that the defendants were negligent and that the plaintiff’s injuries constituted a serious injury, as well as the jury’s apportionment of fault between the plaintiff and the defendants, were not rationally based on a valid line of reasoning and permissible inferences drawn from that evidence.

Moreover, it is for the jury to make determinations as to the credibility of the witnesses, and it is accorded great deference, as it had the opportunity to see and hear the witnesses. A jury verdict in favor of a plaintiff may not be set aside as contrary to the weight of the evidence unless the evidence so preponderates in favor of the defendants that the verdict could not have been reached on any fair interpretation of the evidence. Here, the jury verdicts on the issues of the defendants’ negligence and the apportionment of fault were not contrary to the weight of the evidence, since they were based upon a fair interpretation of the evidence.

However, in light of an error in the court’s charge to the jury, we cannot determine, on the record before us, whether the jury’s finding that the injury it found to be serious were proximately caused by the accident was unsupported by legally sufficient evidence or was contrary to the weight of the evidence. Accordingly, this error requires a new trial on the issues of causation and, if necessary, damages. Specifically, aggravation of a preexisting injury or condition is an element of damages which must be affirmatively pleaded and proven before recovery can be allowed. Here, it is undisputed that the plaintiff failed to allege, either in his complaint or in his six bills of particulars, that he sustained an aggravation of any preexisting degenerative disc condition. Accordingly, it was error for the court to charge, pursuant to PJI 2:283, and over the defendants’ objection, that the jury could award damages for increased susceptibility to injury, based upon an alleged preexisting condition. Under the circumstances of this case, the erroneous charge was prejudicial to the defendants, and warrants a new trial on the issues of which of the plaintiff’s injuries, if any, were proximately caused by the subject accident, whether any injuries proximately caused by the accident constituted a serious injury within the meaning of Insurance Law ยง 5102(d), and the appropriate measure of damages for past and future pain and suffering and past and future loss of earnings that are attributable to the injuries, if any, proximately caused by the accident.

Accordingly, the judgment must be reversed, and the matter must be remitted to the Supreme Court, Kings County, for a new trial on the issues of causation and, if necessary, damages.

In light of the foregoing, it is unnecessary to reach the defendants’ remaining contention that the jury’s awards for pain and suffering and loss of earnings were excessive.

Accordingly, it is ordered that the judgment is reversed, on the law, with costs, those branches of the defendants’ motion which were pursuant to CPLR 4404(a) to set aside the verdicts on the issues of causation and damages and for a new trial on those issues are granted, the matter is remitted to the Supreme Court, Kings County, for a new trial only on the issue of causation and, if necessary, damages, and the order is modified accordingly. The findings of fact as to the defendants’ negligence and the apportionment of fault are affirmed.

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