Is Serious Injury An Essential Element In Granting Judgement on the Issue of Liability ?

In Maldonado v. DePalo, (277 A.D.2d 21, 715 N.Y.S.2d 245) [1st Dept 2000]), the trial court had granted summary judgment to plaintiffs on the issue of liability and directed an inquest on the issue of damages, ruling inter alia that its order finally resolved the issue of serious injury in favor of plaintiffs and limited defendants to contesting only the amount of damages to be awarded at the inquest. The Appellate Division affirmed, finding that serious injury is a threshold issue and a "a necessary element to a prima facie case," and holding that "in granting summary judgment in favor of plaintiffs on the issue of liability, the LAS court necessarily decided that they sustained serious injuries." In Simone v. City of Niagara Falls, (281 A.D.2d 923, 721 N.Y.S.2d 892 [4th Dept 2001]) the defendants stipulated to liability and the case proceeded to a trial on the issue of damages only. After trial defendants argued on appeal that the trial court erred in not charging the jury that plaintiffs had the burden of proving that they sustained serious injuries within the meaning of Insurance Law 5102(d). The Appellate Division concluded, albeit without having seen a copy of the stipulation, that "defendants conceded the issue of serious injury as part of the stipulation on liability." Moreover, there had been no objection when the verdict sheet, the court's preliminary charge, and both counsels' opening statements limited the subject of the trial to the issue of the amount of money only.