Opinion
20 Civ. 2488 (PMH) (PED)
05-09-2022
ELAINE EISENBERG and DOUGLAS EISENBERG, Plaintiffs, v. GOLD FLOWERS DESIGN, INC. and THE MANSION AT LAWRENCE, LLC, Defendants.
REPORT AND
RECOMMENDATION
PAUL. E. DAVISON, U.S.M.J.
TO THE HONORABLE PHILIP M. HALPERN, United States District Judge:
I. INTRODUCTION
On March 22, 2020, plaintiffs Elaine Eisenberg and Douglas Eisenberg (Elaine's husband) commenced this negligence action against Gold Flowers Design, Inc. (“Gold Flowers”) and The Mansion at Lawrence, LLC (“The Mansion”) arising out of a slip and fall that occurred during a wedding celebration at The Mansion. Dkt. #1. Plaintiffs and Gold Flowers settled.Dkt. #29, #32, #33. The Mansion was served on June 10, 2020 (Dkt. #10) but failed to timely answer, move or otherwise respond to the complaint. On July 2, 2021, Your Honor entered a default judgment against The Mansion as to liability (Dkt. #38) and referred this matter to me to conduct an inquest concerning plaintiffs' damages. Dkt. #39.
By letter dated January 18, 2021, plaintiffs counsel advised that all claims against Gold Flowers had been resolved (for $90,000). Dkt. #29. This Court entered a 30-day Order on June 3,2021. Dkt. #33.
On July 16, 2021,1 entered a scheduling order directing plaintiffs to serve and file proposed findings of fact and conclusions of law by August 27, 2021 and directing defendant to submit any responsive materials by September 17, 2021. Dkt. #40. The Scheduling Order also stated the following:
The Court hereby notifies the parties that it may conduct this inquest based solely upon the written submissions of the parties. See Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989). The Court will determine whether an evidentiary hearing is necessary after receiving submissions from the parties. To the extent that any party seeks an evidentiary hearing on the issue of damages (or other monetary relief), such party must set forth in its submission the reason why the inquest should not be conducted based upon the written submissions alone, including a description of what witnesses would be called to testify at a hearing and the nature of the evidence that would be submitted.Dkt. #40, ¶ 4. On August 1, 2021, plaintiffs filed proof of service of the Scheduling Order upon Defendant Mansion via first class mail. Dkt. #41.
On August 27, 2021, plaintiffs filed the requisite papers, consisting of Proposed Findings of Fact and Conclusions of Law and attached exhibits. Dkt. #42. My initial review of plaintiffs' submissions revealed that plaintiffs neglected to cite to any case law to substantiate the amount of their requested damages. Dkt. #42. Accordingly, by Order dated February 16, 2022,1 directed plaintiffs to file a supplemental submission setting forth comparable approved awards from similar cases by March 9, 2022. Dkt. #43. Plaintiffs filed the requested supplemental submission on March 9, 2022 Order. Dkt. #45.
To date, The Mansion has not filed any opposition, nor has it contacted the Court in any way. Plaintiffs have not requested an evidentiary hearing on the issue of damages. Because plaintiffs' inquest submissions provide a basis for damages, no hearing was required. Fustok, 873 F.2d at 40. On the basis of plaintiffs' written submissions, I recommend (for the reasons that follow) that Your Honor enter judgment in favor of plaintiffs in the amount of $40,000.00.
II. FINDINGS OF FACT
The Mansion is a New York limited liability company with its principal place of business at 140 Central Avenue, Lawrence, New York. Dkt. #1, ¶ 3. At all relevant times, The Mansion was a catering hall and venue for wedding ceremonies and receptions (‘ the premises). Dkt. #1, ¶ 7. At all relevant times, The Mansion owned, operated, managed and controlled the premises, including the wedding ceremony auditorium and its center aisle walkway. Dkt. #1, ¶ 10.
On August 19, 2018, a wedding ceremony and reception were held at The Mansion. Dkt #1, ¶ 8. During the ceremony, guests were seated in rows on both sides of the center aisle (which provided ingress/egress for the rows of seats and for the wedding party to/from the stage). Dkt. #1, ¶ 13. The floor of the central aisle consisted of uneven slate tile. Dkt. # 1, ¶ 15; Diet. #42, ¶ 9. The central aisle floor was covered with a makeshift decorative runner, consisting of a three-to-four-foot-wide strip of thin, light, slick, smooth fabric. Dkt. #1, ¶ 15; Dkt. #42, ¶ 10. The runner was slippery and unstable. Dkt. #1, ¶ 15. In addition, flower petals were strewn about on and along the sides of the runner. Dkt. #1, ¶ 16. The Mansion had actual and/or constructive notice of the hazardous condition of the central aisle. Dkt. #1, ¶ 25.
Plaintiffs attended the wedding. Dkt. #1, ¶ 11; Dkt. #42-3 at 13; Dkt. #42-7 at 9. At the conclusion of the wedding ceremony, as Mrs. Eisenberg proceeded down the central aisle toward the exit, she slipped on the flower petals and tripped on the runner. Dkt. #1, ¶ 17; Dkt. #42-3 at 40. More specifically, after Mrs. Eisenberg slipped on the flower petals, the runner became bunched and her foot got caught in it, which caused her to fall “very hard.” Dkt. #42-3 at 49, 59, 63. She landed on her left knee and immediately felt pain (at an intensity of 8/10). Dkt. #42-3 at 58-59, 67. Mrs. Eisenberg could not stand up; two women behind her lifted her up and put her in a chair next to the central aisle. Dkt. #42-3 at 59. Someone brought her ice. Dkt. #42-3 at 60.
Citations to page numbers following “Dkt, #__” reflect ECF pagination.
Mrs. Eisenberg remained in the chair as the wedding guests exited the ceremony room and went to the dining room for dinner; Mr. Eisenberg and two or three friends stayed with her. Id. After “a good twenty minutes,” Mrs. Eisenberg could not bend her knee; she was helped to the dining room and sat down at her table. Dkt. #42-3 at 59-60.
Mrs. Eisenberg ate dinner. Dkt. #42-3 at 60. During dinner, Mr. Eisenberg had her left knee examined by Dr. Irving Strauchler, an orthopedist who was also a guest at the wedding. Dkt. #42, ¶ 26; Dkt. #42-3 at 67-68. Dr. Strauchler told Mrs. Eisenberg that she most likely broke her patella (knee cap); he gave her a prescription for an x-ray and instructed her to followup with him after the x-ray the next morning. Dkt. #42, ¶ 26; Dkt. #42-3 at 68-69.
The next day, Mrs. Eisenberg underwent an x-ray and saw Dr. Strauchler, who confirmed that she had broken her kneecap. Dkt. #42-3 at 69. Dr. Strauchler told Mrs. Eisenberg that she would not need surgery for this injury and placed her in a soft splint. Dkt. #42-3 at 69-70. She wore the splint for four days, until August 23, 2018, when she began treatment with Dr. William Oppenheim (an orthopedic surgeon in her insurance plan). Dkt. #42, ¶ 28; Dkt. #42-3 at 70. Dr. Oppenheim reviewed the x-ray and confirmed that Mrs. Eisenberg suffered a non-displaced patellar fracture of her left knee from her fall at the wedding. Dkt. #42, ¶ 28; Dkt. #42-3 at 70; Dkt. #42-4 at 22. Mrs. Eisenberg complained of pain from the splint “digging in the back of her leg”; Dr. Oppenheim placed her in a removable knee immobilizer and Tubigrip device (which Dr. Oppenheim recommended should not be removed except when showering). Dkt. #42, ¶ 28; Dkt. #42-4 at 6, 9. Dr. Oppenheim instructed Mrs. Eisenberg to completely refrain from bending her left knee. Dkt. #42-4 at 9.
Six weeks later (on September 27, 2018), Dr. Oppenheim placed Mrs. Eisenberg into a hinged brace with controlled knee flexion and prescribed physical therapy. Dkt. #42-4 at 39. Mrs. Eisenberg began physical therapy on October 8, 2018 but was “less than enthralled with the level of therapy” and only attended “three or four” sessions. Dkt. #42, ¶ 29; Dkt. #42-3 at 71 Dkt. #42-4 at 40, 51. On October 18, 2018, Dr. Oppenheim noted that Mrs. Eisenberg “will be holding off on the therapy and doing her exercises at home for the next 3 weeks.” Dkt. #42-4 at 54. Mrs. Eisenberg began using a stationaiy bike at home (and continued to use the bike for about eight months). Dkt. #42, ¶ 29; Dkt. #42-3 at 72. On November 8, 2018, x-rays revealed Mrs. Eisenberg's fracture was “well on its way to healing.” Dkt. #42-4 at 61. Dr. Oppenheim removed the brace and instructed plaintiff “to be cautious” and to use the exercise bike for at least a half hour per day with the seat elevated. Id. At a follow-up visit on December 11, 2018, Mrs. Eisenberg reported “feeling definitely appreciably stronger” and that she “does function quite well with her day-to-day activities.” Dkt. #42-4 at 65. She also reported severe pain when she attempted a complete squat. Id. X-rays revealed the fracture was well-healed; Dr. Oppenheim told Mrs. Eisenberg she could resume all activities. Dkt. #42-4 at 68.
Mrs. Eisenberg stopped working several years prior to the date of her accident, when her mother became ill. Dkt. #42-3 at 14-15. At the time of her accident, Mrs. Eisenberg was 56 years old and spent much of her time caring for her parents, both of whom were incapacitated due to illness. Dkt. #42, ¶ 20; Dkt. #42-2, ¶ 2; Dkt #42-3 at 10-11. Specifically, Mrs. Eisenberg went food shopping for her parents, prepared their meals, accompanied them to their doctor appointments, oversaw their home health aides and managed their personal affairs. Dkt. #42-2, ¶ 2. She also helped her two daughters with childcare (for three grandchildren). Dkt. #42-2, ¶ 2. Prior to her accident, Mrs. Eisenberg walked for exercise, seven days a week for about an hour, on. the treadmill or elliptical. Dkt. #42, ¶¶ 33-34; Dkt. #42-3 at 73.
After the accident, Mrs. Eisenberg was unable to care for her parents or her grandchildren for four months. Dkt. #42-2, ¶ 3. She could not walk for exercise for about four months, until January 2020 when she resumed walking seven days a week. Dkt. #42, ¶ 33; Dkt. #42-3 at 73. Mrs. Eisenberg no longer uses the elliptical, because Dr. Oppenheim advised her that it was “not good for the knee.” Dkt. #42, ¶ 34; Dkt. #42-3 at 75. To date, Mrs. Eisenberg's knee will “lockup” for no more than a few seconds, once a week. Dkt. #42 ¶ 31; Dkt. #42-3 at 74-75. She also experiences an occasional burning sensation in her left knee that lasts about a minute. Dkt. #42 ¶ 31; Dkt. #42-3 at 73-74. In addition, she cannot deep squat or rest her weight on her left knee due to tenderness. Dkt. #42, ¶ 34; Dkt. #42-2, ¶ 3.
Mrs. Eisenberg's accident did not affect her relationship/love life with her husband. Dkt. #42-3 at 76. For about six months after the accident, Mr. Eisenberg would do house chores (e.g. taking out the garbage, cleaning up, helping his wife with the vacuum and moving things up and down the stairs) that he “normally wouldn't have to do” because Mrs. Eisenberg was “in distress.” Dkt. #42, ¶ 36; Dkt. #42-7 at 10-11. However, Mrs. Eisenberg's accident did not prohibit them from engaging in their normal activities as a couple because, according to Mr. Eisenberg, his wife is “a trooper. She would just put her brace on, we would go, but she'd be in pain, but we would go anyway.” Dkt. #42-7 at 11.
III. LEGAL STANDARD GOVERNING INQUEST ON DAMAGES
When a defendant defaults, the court must accept all well-pleaded factual allegations in the complaint as true, except those pertaining to the amount of damages. Finkel v. Romanowicz, 577 F.3d 79, 83 n. 6, 84 (2d Cir. 2009); Fed.R.Civ.P. 8(b)(6). “While both a notice of default and a default judgment deem the complaint's factual allegations admitted, a default judgment generally signals recognition of the defaulting party's liability.” Cont'l Indus. Grp., Inc. v. Altunkilic, 788 Fed.Appx. 37, 40 (2d Cir. 2019) (citing City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 128 (2d Cir. 2011) (explaining that “entry of a default judgment[ ] converts the defendant's admission of liability into a final judgment that terminates the litigation and awards the plaintiff any relief to which the court decides it is entitled”); Swarna v. Al-Awadi, 622 F.3d 123, 140 (2d Cir. 2010) (explaining difference between default judgment and notice of default)). Thus, “[a] default judgment that is entered on the well-pleaded allegations in a complaint establishes a defendant's liability. . . and the sole issue that remains before the could is whether the plaintiff can show, with reasonable certainty, entitlement to the amount of damages he or she seeks.” Hartford Fire Ins. Co. v. Queens Cty. Carting, Inc., No. 20 Civ 1844, 2022 WL 1093201, at *1 (S.D.N.Y. Apr. 5, 2022) (quotation marks and citation omitted).
“A district court is required to determine whether the plaintiff s allegations establish the defendant's liability as a matter of law.” HSBC Bank USA, N.A. v. PAKS Holdings, LLC, No. 19 Civ. 10193, 2021 WL 667661, at *3 n.2 (S.D.N.Y. Feb. 22, 2021) (quotation marks and citation omitted), report and recommendation adopted sub nom., 2021 WL 5042710 (S.D.N.Y. Oct. 28, 2021). To the extent the Default Judgment (Dkt. #38) does not elaborate as to the Court's liability finding, the record supports the conclusion that plaintiffs have established The Mansion's liability. As a threshold matter, plaintiffs assert (and defendant does not refute) that New York substantive law governs this diversity action. Dkt. #42, ¶ 38. Under New York law, a negligence action in the context of premises liability “will be successful if [ ] there is an unreasonably unsafe condition on the defendant's property that the defendant knows or should have know about, and this unreasonably unsafe condition causes a foreseeable plaintiff s injuries." Gorecki v. Painted Pony Championship Rodeo, Inc., 6 Fed.Appx. 103,105 (2d Cir. 2001). Here, plaintiffs' factual allegations are sufficient to establish each element of this claim. See Dkt. #1. Further, “[i]t is well settled under New York law that a claim for loss of consortium is a derivative action and, as such, its viability is dependent on the viability of a primary cause of action.” Dockery v. United States, 663 F.Supp.2d 111, 125 (N.D.N.Y. 2009) (quotation marks and citations omitted). Thus, The Mansion's liability as to both claims has been established as a matter of law.
A defendant's default does not constitute an admission of damages. Bricklayers & Allied Craftworkers Loc. 2, Albany, N. K Pension Fund v. Moulton Masonry & Const., LLC, 779 F.3d 182, 189 (2d Cir. 2015). “State substantive law governs the issue of damages in a case over which a federal court exercises diversity jurisdiction.” Hartford Fire Ins. Co., 2022 WL 1093201, at *1 (quotation marks and citation omitted). Accordingly, in this diversity action, this Court must determine damages in accordance with New York law.
On an inquest for damages, the plaintiff bears the burden of proof and must introduce admissible evidence to establish, with reasonable certainty, a basis for the amount of damages it seeks. House v. Kent Worldwide Mach. Works, Inc., 359 Fed.Appx. 206, 207 (2d Cir. 2010); Yunjian Lin v. Grand Sichuan 74 St Inc., No. 15 Civ. 2950, 2020 WL 3072290, at *2 (S.D.N.Y. June 10, 2020). The plaintiff is entitled to all reasonable inferences from the evidence he or she presents. House, 359 Fed.Appx. at 207. “In addition,'under New York law, courts look to approved awards in similar cases as guideposts in fashioning appropriate damage awards.” Ventarola v. Narvaez, No. 18 Civ. 3231, 2021 WL 1536540, at *4 (S.D.N.Y. Feb. 16, 2021) (quotation marks and citations omitted), report and recommendation adopted, 2021 WL 839454 (S.D.N.Y. Mar. 5, 2021). “A court has the discretion to decline to award any damages where, on a damages inquest, a plaintiff fails to demonstrate its damages to a reasonable certainty, even though liability has been established through default.” NTT Am. Inc, v. Tennessee Data Sys., LLC, No. 17 Civ. 8274, 2018 WL 5493088, at *3 (S.D.N.Y. Oct. 11, 2018), report and recommendation adopted, 2018 WL 5447340 (S.D.N.Y. Oct. 29, 2018).
IV. ASSESSMENT OF DAMAGES
Plaintiffs seek an award of damages against The Mansion in the amount of $92,500: $85,000 to Mi's. Eisenberg for past and future pain and suffering; and $7,500 to Mr. Eisenberg for loss of consortium. Dkt. #42, ¶ 43. Plaintiffs have submitted the following exhibits in support of this request: the transcript of Mrs. Eisenberg's deposition (Dirt. #42-3); the transcript of Mr. Eisenberg's deposition (Dkt. #42-7); the August 26, 2021 Declaration of Plaintiff Elaine Eisenberg detailing her injury and its effects (Dkt. #42-2); a certified copy of Dr. Oppenheim's medical records (Dkt. #42-4); and two photographs depicting Mrs. Eisenberg wearing the initial soft splint (Dkt. #42-5 and #42-6). The Court has thoroughly reviewed plaintiffs' submissions and finds that they constitute sufficient evidence to form the basis of an award of damages. Accordingly, the following discussion assesses the amount of damages to which plaintiffs are entitled based upon the information set forth in their submissions.
Plaintiffs contend that Mrs. Eisenberg is entitled to damages for past and future pain and suffering in the amount of $175,000, but assert that this amount must be reduced by the settlement paid by defendant Gold Flowers, pursuant to New York General Obligations Law §15108. Dkt. #42, ¶¶ 41-43. 1 note that, “in cases involving the application of N.Y. Gen. Oblig. Law § 15-108(a) as well as in cases involving the application of federal common law, most courts in the Second Circuit have held that a defendant in default may not invoke the benefits of the set-off rule.” Sole v. Knoedler Gallery, LLC, No. 12 Civ. 2313, 2016 WL 5417880, at *10 (S.D.N.Y. July 21, 2016) (quotation marks and citation omitted) (citing cases), report and recommendation adopted, 2016 WL 5468298 (S.D.N.Y. Sept. 28, 2016).
A. Pain and Suffering
“An award for pain and suffering includes compensation for physical pain, emotional pain and loss of enjoyment of pleasurable life activities.” Hinckley v. Westchester Rubbish, Inc., 2006 WL 2849841, at *4 (S.D.N.Y. Oct. 2, 2006). Pain and suffering damages “are designed to restore the aggrieved party to the position she was in prior to the injury. Id. Factors to be considered in evaluating such awards include the nature, extent and permanency of the injuries, the extent of past, present and future pain and the long-term effects of the injury.” Gonzalez v. United States, No. 17 Civ. 3645, 2020 WL 1548067, at *8 (S.D.N.Y. Mar. 31, 2020) (quotation marks and citation omitted). “Guidance may be found ... in prior awards involving similar torts, similar injuries, or both,” Id. (quotation marks and citation omitted).
Here, Mrs. Eisenberg obviously experienced pain and an adverse impact on her daily activities due to her patella fracture. For four months following the accident, she could not walk for exercise (as she did prior) and could not care for her parents or grandchildren. The initial splint she wore for four days was extremely uncomfortable and painful. She wore the replacement brace for six weeks, during which time she could not bend her knee. At that point, she was prescribed a hinged brace with controlled knee flexion and resumed using a stationary bike. About five weeks later, the fracture was “well on its way to healing”; the brace was removed and Mrs. Eisenberg was told to use the exercise bike at least a half hour per day. Within a month or so, Mrs. Eisenberg was feeling much stronger and functioning quite well with her daily activities. X-rays revealed the fracture was well-heeled, and she was told she could resume all activities. To date, Mrs. Eisenberg's knee will “lock-up for a few seconds, once a week. She also experiences an occasional burning sensation in her left knee that lasts about a minute. In addition, she cannot deep squat or rest her weight on her left knee due to tenderness.
In support of the amount of damages plaintiffs seek, plaintiffs' counsel submitted a supplemental memorandum listing “collected New York cases settling forth comparable approved awards from similar cases of knee injury or fracture.” Dkt. #45. However, although the cases plaintiffs cite involved higher damages awards then what plaintiffs seek at bar, they are not “similar” in that they involve much more serious injuries than what Mrs. Eisenberg suffered. Id. Plaintiffs' cited cases involve meniscus tears resulting in surgery, fractures that result in surgery, permanent knee injuries, and/or multiple permanent injuries unrelated to the knee. Id. Accordingly, the Court has undertaken its own review of the case law which, although not binding, is informative.
Many of the personal injury cases involving knee injuries also involve other injuries and/or result in one or more surgeries. See Cullen v. Thumser, 115 N.Y.S.3d 74 (2d Dep't 2019) (plaintiff sustained tom meniscus required arthroscopic surgery, and a ligament tear in thumb of dominant hand which would not return to normal even with surgery; jury awarded $25,000 for past pain and suffering; remitted for new trial on damages unless defendant stipulated to $100,000 for past pain and suffering and $50,000 for future pain and suffering); Coleman v. Karimov, 103 N.Y.S.3d 146 (2d Dep't 2019) (plaintiffs Leroy and Sharese each sustained knee injuries which required arthroscopic surgery; Leroy also sustained rotator cuff injury; Sharese had ongoing difficulty walking up and down stairs and kneeling in church; jury awarded Leroy $30,000 for past pain and suffering and Sharese $10,000 for past and $20,000 for future pain and suffering; remitted for new trial on damages unless defendants stipulated to $75,000 for Leroy's past pain and suffering, $50,000 to Sharese for past pain and suffering and $150,000 to Sharese for future pain and suffering); Vainer v. DiSalvo, 967 N.Y.S.2d 107 (2d Dep't 2013) (plaintiff underwent two arthroscopic surgeries under general anesthesia to repair tom right knee medial and lateral menisci, and sustained four disc bulges in the lumbar region of her spine and a disc herniation at ¶ 5-S1; jury awarded $67,000 for past pain and suffering); Adames v. Awad, 850 N.Y.S.2d 561 (2d Dep't 2008) (plaintiff suffered a high grade LCL sprain, a radial tear of the posterior horn of the medial meniscus, tom cartilage, tom meniscus, and a posterior tear of the lateral horn of the lateral meniscus, resulting in arthroscopic surgery and, ultimately, a total knee replacement; plaintiff had permanent, significant limitation in the range of motion in his knee and would require another knee replacement in the future; jury awarded $7,500 for past pain and suffering and no damages for future pain and suffering; remitted for new trial on damages unless defendants stipulated to $150,000 for past pain and suffering and $150,000 for future pain and suffering); Lopez v. Consolidated Edison Co. of New York, Inc., 835 N.Y.S.2d 115 (IstDep t 2007) (plaintiff sustained two meniscus tears and chondromalacia of his knee, resulting in arthroscopic surgery; plaintiff also injured his neck, back, wrist and thumb; jury awarded $66,250 for past pain and suffering and $348,750 for future pain and suffering).
Similarly, the amount of damages recovered in cases involving fractures of the patella or other lower leg bones varies greatly, depending on whether additional injuries were incurred and whether surgery was necessary. See Orona v. Wai Sun Realty, LLC & Phoenix Builders, Inc., No. 3006O3-TSN-2009, 2010 WL 5383320, N.Y.J.V.R.A. (N.Y. City Civ. Ct. Nov. 22, 2010) (trip and fall resulted in right knee injuries included derangement, a comminuted patella fracture, an ACL tear and tears of the lateral and medial menisci, resulting in plaintiff being wheelchair bound for several months; plaintiff suffered a permanent limp and reduction in range of motion and requires use of a cane; the parties settled at mediation for $140,000); Dell'Orto v. Hunt, et al.,No. 2173-07, 2008 WL 4380385, N.Y.J.V.R.A. (Sup. Ct. West. Cnty. Aug. 14, 2008) (plaintiff suffered full-thickness tears of the infraspinatus and supraspinatus tendons in his right shoulder's rotator cuff and fractures in his right leg (a comminuted fracture of his fibula and fractures in the tibia and tibial plateaus); his fractures were addressed via arthroscopic surgery, open reduction and internal fixation; he was hospitalized for three days, bed-bound for one week and homebound/totally disabled for six months; case settled for $300,000); Elliott v. The Porthole Restaurant, Inc., No. 21516, 2001 WL 35269866, N.Y.J.V.R.A. (Feb. 1, 2001) (plaintiff slipped and fell at a restaurant and suffered a displaced comminuted fracture of her patella (treatment unspecified); jury awarded $175,000 for pain and suffering); Zavurov v. City of New York, 659 N.Y.S.2d 897 (2d Dep't 1997) (plaintiff stepped into a pothole and suffered a comminuted fracture of his right tibia and fibula; he underwent surgery whereby metal plates and screws were inserted to align the position of his fractured bones; after extensive rehabilitation and physical therapy, he had a second surgery to remove the plates and screws; he was unable to stand for long periods of time and had to give up his profession as a barber; jury awarded him $400,000 for past pain and suffering and $100,000 for future pain and suffering, and awarded his wife $105,000 for loss of consortium; remitted for new trial on those damages unless plaintiffs stipulated to a reduction: $250,000 for past pain and suffering; $75,000 for future pain and suffering; and $25,000 for loss of consortium); Ferrer v. Water Mill Rental Center Corp., No. 0257-91, 1992 WL 407508, N.Y.J.V.R.A. (Sup. Ct. N.Y. Cnty. Aug. 1, 1990) (plaintiff tripped over a hand truck in a retail store aisle and suffered a comminuted fracture of her little finger on her non-dominant hand and a transverse non-displaced comminuted fracture of her left patella, the parties settled for $75,000).
In a comminuted fracture, “the bone shatters into three or more pieces” and such fractures often require surgery to treat. See https://orthoinfo.aaos.org/en/diseases-conditions/patellar-kneecap-fi'actures/ (last visited May 5, 2022).
Lastly, in order to get a full picture, the Court reviewed damage awards stemming from knee injuries that did not involve a fracture or ligament/tendon tears. See Johnson v. United-States, No. 05-CV-851, 2006 WL 8461876 (S.D.N.Y. April 11, 2006) (plaintiff slipped on ice and heard his knee “pop,” which exacerbated preexisting, degenerative, previously asymptomatic tears in his knee and necessitated arthroscopic surgery; plaintiff had lingering pain, cramping and tingling in his knee and could not walk as much as he had in the past; following a bench trial, the court awarded plaintiff $27,500 for pain and suffering); Sandy v. NYC Transit Authority, 747 N.Y.S.2d 110 (2d Dep't 2002) (plaintiff was involved in a car accident and sustained multiple rib fractures and crepitation of the knee; she was hospitalized for five days, during which she experienced severe chest pain; jury awarded her $200,000 for past pain and suffering and $150,000 for future pain and suffering; remitted for a new trial on damages unless plaintiff stipulated to $75,000 for past pain and suffering and $50,000 for future pain and suffering); Lolik v. Big V Supermarkets, Inc., 698 N.Y.S.2d 762 (3d Dep't 1999) (Plaintiffs fall caused her preexisting, asymptomatic arthritis in her knees to become symptomatic; jury awarded $10,000 for past pain and suffering and $10,000 for future pain and suffering); Coutrier v. Haradan Motorcar Corp., 655 N.Y.S.2d 660 (3d Dep't 1997) (plaintiff injured her right knee in a car accident; initial diagnosis was a patellar contusion which was treated with physical therapy; arthroscopic surgery was performed nine months later due to persistent pain, swelling, fluid and limited range of motion in the knee; lingering symptoms included pain in the retro patellar area and numbness in her leg; jury awarded $5,000 for past pain and suffering and $30,000 for future pain and suffering); Hulsen v. Morrison, 614 N.Y.S.2d 561 (2d Dep't 1994) (plaintiff sustained permanent injuries in a car accident, including radioculopathy and arthritic changes in his neck, a herniated disk in his lower back and a grade-three chondromalacia in his right knee; jury awarded, inter alia, $175,000 for past and future pain and suffering; remitted for new trial on damages unless plaintiff stipulated to a $75,000 award for past/future pain and suffering).
I have considered the range of awards in the above cases, in the context of Mrs. Eisenberg's simple, non-displaced patella fracture which did not require surgery but nonetheless caused her pain and adversely impacted some of her daily activities for four months. I have balanced that against evidence (based on Mr. Eisenberg's testimony) which suggests that Mrs. Eisenberg was able to engage in many other regular activities while wearing the brace, despite her pain. I have also considered the lingering symptoms described by Mrs. Eisenberg which, while not significantly limiting, are nonetheless troublesome, inconvenient and uncomfortable. Accordingly, I conclude and respectfully recommend that Mrs. Eisenberg is entitled to damages for past pain and suffering in the amount of $30,000 and for future pain and suffering in the amount of $5,000.
B. Loss of Consortium
“An award for loss of consortium is designed to compensate for the injury to the marital relationship and to the interest of the injured party's spouse in the continuance of a healthy and happy marital life.” Gonzalez, 2020 WL 1548067, at *9 (quotation marks and citations omitted). Further,
where a spouse, prior to injury, performed certain household services for his or her other spouse, the latter spouse may recover the pecuniary value of the services that the injured spouse formerly performed. By a parity of reasoning, where an injury to a spouse compels the other spouse to perform additional tasks, not previously performed, for the injured spouse, the non-injured spouse may properly recover for the pecuniary value of those additional services.Id. at *8-9 (quotation marks and citation omitted).
I have considered the evidence which establishes that, as a result of Mrs. Eisenberg's injury, Mr. Eisenberg performed tasks and household chores “he normally wouldn't have to” for a period of six months. I have also considered Mrs. Eisenberg's testimony that her accident did not affect her relationship/love life with her husband, as well as evidence that Mrs. Eisenberg's accident did not prohibit them from engaging in their normal activities as a couple. Accordingly, I conclude and respectfully recommend, that Mr. Eisenberg is entitled to an award of damages for loss of consortium in the amount of $5,000.
V. CONCLUSION
For the reasons stated above, I conclude -and respectfully recommend Your Honor should conclude-that plaintiffs be awarded damages against the defaulting defendant in the total amount of $40,000.00, consisting of:
1. $30,000.00 to Mrs. Eisenberg for past pain and suffering;
2. $5,000.00 to Mrs. Eisenberg for future pain and suffering; and
3. $5,000.00 to Mr. Eisenberg for loss of consortium.
Plaintiffs counsel is directed to serve a copy of this Report and Recommendation on defendant and file proof of service promptly.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to serve and file written objections. See also FED. R. CIV. P. 6(a). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Honorable Philip M. Halpern, at the Honorable Charles L. Brieant Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered.
Requests for extensions of time to file objections must be made to Judge Halpern.