
    Dennis Pearson et al., Appellants, v Ronald W. Krupka, Respondent.
    (Appeal No. 1.)
    [612 NYS2d 702]
   —Judgment unanimously reversed on the law with costs, motion granted and new trial granted. Memorandum: Supreme Court erred when it denied plaintiffs’ motion to set aside the verdict as against the weight of the evidence. Plaintiff Dennis Pearson (plaintiff) commenced this action to recover for "serious injury” sustained as a result of an accident with defendant (see, Insurance Law § 5104 [a]). Plaintiff testified that he suffered a fracture and lacerations. Defendant presented no medical witnesses or evidence to controvert that testimony. The court did not give any instructions pertaining to "serious injury” and the jury was given, without objection, a verdict sheet that asked the jury to determine, inter alia, whether plaintiff sustained "injuries” as a result of the accident. The jury found that defendant was negligent and that his negligence was a substantial factor in causing the accident, but that plaintiff had not sustained "injuries” as a result of the accident. Because the proof that plaintiff sustained injuries was uncontroverted, the jury’s verdict that plaintiff failed to prove that he sustained injuries as a result of the accident is against the weight of the evidence. (Appeal from Judgment of Supreme Court, Onondaga County, Murphy, J. — Negligence.) Present— Denman, P. J., Pine, Fallon, Callahan and Davis, JJ.  