Opinion
14390 Index No. 27231/16 Case No. 2020-03104
10-14-2021
Vincent MADIA, Plaintiff–Respondent, Patricia Verdesoto, Plaintiff, v. Jaime A. GARCIA, Defendant–Appellant.
The Noll Law Firm, P.C., New York (Nicholas W. Dell'Anno of counsel), for appellant. Morgan Levine Dolan, P.C., New York (Joseph Gorczyca of counsel), for respondent.
The Noll Law Firm, P.C., New York (Nicholas W. Dell'Anno of counsel), for appellant.
Morgan Levine Dolan, P.C., New York (Joseph Gorczyca of counsel), for respondent.
Kapnick, J.P., Singh, Shulman, Pitt, Higgitt, JJ.
Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered on or about June 15, 2020, which granted plaintiff Vincent Madia's motion to set aside the verdict to the extent of vacating the $5,000 jury award for past pain and suffering and increasing it to $250,000, unanimously affirmed, without costs.
The trial court providently exercised its discretion in increasing the award for past pain and suffering from $5,000 to $250,000. While the jury could reasonably have concluded that plaintiff's ankle was not fractured but merely sprained and that some portion of the pain he experienced was attributable to a prior ankle injury, it could not have reasonably disregarded the evidence that plaintiff suffered a herniated disc and two disc bulges as a result of the accident.
The MRI films and reports demonstrating those injuries were properly admitted as part of the file of plaintiff's treating doctor, notwithstanding that they were created at an outside facility (see Freeman v. Shtogaj, 174 A.D.3d 448, 449, 106 N.Y.S.3d 295 [1st Dept. 2019] ). Plaintiff's doctor also properly relied on those records in offering his opinions at trial, which were based not only on the MRIs, which he ordered, but also on his own examination and tests (see id. at 449–450, 106 N.Y.S.3d 295 ).
Because the jury award for past pain and suffering in this case was far lower than the awards in other cases involving disc herniations or bulges, the trial court properly increased that award (see e.g. Waring v. Sunrise Yonkers SL, LLC, 134 A.D.3d 488, 490, 21 N.Y.S.3d 70 [1st Dept. 2015] ; James v. Farhood, 96 A.D.3d 503, 504–505, 947 N.Y.S.2d 11 [1st Dept. 2012] ; Turuseta v. Wyassup–Laurel Glen Corp., 91 A.D.3d 632, 635, 937 N.Y.S.2d 240 [2d Dept. 2012] ; Sanabia v. 718 W. 178th St., LLC, 49 A.D.3d 426, 426, 854 N.Y.S.2d 375 [1st Dept. 2008] ; Wimbish v. NYC Tr. Auth., 305 A.D.2d 586, 587, 759 N.Y.S.2d 879 [2d Dept. 2003] ; Amonbea v. Perry Bev. Distribs., Inc., 294 A.D.2d 285, 286, 741 N.Y.S.2d 879 [1st Dept. 2002] ).
We have considered defendant's remaining contentions and find them unavailing.