Opinion
Index No. TS-300478-17/QU
09-19-2022
Igal Sagy, Plaintiff, v. Yitzchak Senft and Aryeh Senft, Defendants.
Plaintiff's Firm: Peter S. Thomas, Esq. Defendant's Firm: John M. McCormack, Esq. Law Office of Michael Ferro & Associates
Unpublished Opinion
Plaintiff's Firm: Peter S. Thomas, Esq.
Defendant's Firm: John M. McCormack, Esq. Law Office of Michael Ferro & Associates
Hon. Patria Frias-Colón, A.J.S.C.
Decision, pursuant to Civil Procedure Law and Rules ("CPLR") §4213 ("Trial by the Court"), held on and between January 10, 2022 and January 14, 2022, and post-trial briefs submitted by counsel representing both parties.
Papers submitted for the above-listed index Received: EDDS No.
Defendant's Notice of Motion and Affirmation in Support March 9, 2022 O0TWQN
Defendant's Amended Notice of Motion/Affirmation in Support March 10, 2022 6OAIZN
Plaintiff's Affirmation in Opposition May 19, 2022 KOIHMO
Defendant's Affirmation in Reply May 31, 2022 AOFQFA
Procedural History
Plaintiff Igal Sagy ("Plaintiff") filed this case in Queens County Supreme Court against Defendants Yitzchak Senft and Aryeh Senft on October 3, 2016. Plaintiff seeks recovery for past and future pain and suffering arising from injuries reportedly suffered by Plaintiff in a car accident in Queens on August 28, 2009. Plaintiff alleges that, while sitting in his van, he was either struck by a car driven by Defendant Yitzchak Senft and owned by Defendant Aryeh Senft. There is an alternative version: there was a parked car between Plaintiff's van and Defendants' car that was rear-ended by Defendant Yitzchak Senft and pushed forward hitting Plaintiff's van.
On or about July 13, 2017, the Queens County Supreme Court transferred the case to the Queens County Civil Court for further proceedings. During the next four and one-half years, which included a period in which court-proceedings were delayed because of the Covid-19 pandemic, the parties subpoenaed various records from entities including hospitals and government agencies. On January 4, 2022 there was a settlement conference and the case was adjourned to January 6, 2022 for trial and adjourned again to January 10, 2022 due to medical issues of one of the attorneys.
On or about and between January 10, 2022 and January 14, 2022, the parties, through counsel, conducted a jury trial before this Court. After verdicts for the Plaintiff on both liability and damages, Defendants moved to vacate the damages verdict and to dismiss the complaint, or to set a trial on damages on the grounds that the verdict was against the weight of the evidence and excessive.
On or about and between March 9, 2022 and May 31, 2022, Defendants again moved, through papers, to vacate the damages verdict and to dismiss the complaint, or to set a trial on damages on the grounds that the verdict was against the weight of the evidence and excessive.
Statement of Facts and Evidence from the Trial
Liability
Defendant Yitzchak Senft testified that he had pulled his father's minivan from their house's driveway and was parallel-parking it on the street when he tapped the four-door sedan in front of him "pretty light" (T. at 68-69, 114, 116-117, 125-128, 131). He said that the vehicle he tapped was behind Plaintiff's vehicle (T. at 69, 125). Senft said that his brother Neftali was present, guiding him as he parallel-parked (T. at 114-116, 124). Yitzchak Senft testified that there was no damage to his car, nor to Plaintiff's vehicle nor to the car between their vehicles (T. at 69-70, 117-118, 120, 127, 137).
"T." refers to pages of the transcript of the trial in this case.
Plaintiff's Exhibit 3 was a damages estimate from Kobi Auto Collision and Paint dated August 30, 2009 showing an amount of $1510.63 for replacement of the rear lights and assembly, repairs to the bumper, body panel and left door shell, as well as almost 28 hours of labor, for his 1996 GMC Astro van.
Naftali Senft testified that his brother Yitzchak bumped the sedan that was in front of their van as his brother was parallel-parking (T. at 145-146, 150). He and his brother looked to see if there was any scuffs or other damage to the sedan (T. at 146). He saw Plaintiff step from his van, which was in front of the sedan, and look to see if there was any damage to his van (T. at 146-147, 151, 161). Naftali Senft testified that Plaintiff got became upset several minutes after the accident (T. at 163). He saw no damage to either his family's van, to the sedan or to Plaintiff's van (T. at 146-147, 158). Naftali said that the owner of the sedan was told that his car had been hit but that person looked at his car and then drove away (T. at 147). No ambulance came to the scene (T. at 148). They did not have to repair their van because it had not been damaged (T. at 148).
Plaintiff testified that he had parked his minivan, turned off the ignition and was in the process of stepping out of his car when it was struck in the rear by a minivan operated by Defendant Yitzchak Senft. (T. at 77-78, 83, 88). He testified that as a result of the impact he was violently thrown onto the street from his vehicle and rolled on the ground, resulting in the alleged injury (T. at 78, 89). He claimed that Yitzchak Senft apologized, stating that he meant to hit the brake but hit the "gas" (T. at 79); that Yitzchak Senft's brother approached him and apologized (T. at 80); that he wanted to call the police and an ambulance, but that Defendants' mother begged him not to (T. at 80, 83, 93-94, 96, 100-101). He went to the hospital about four hours after the accident (T. at 102).
Neither Defendant Yitzchak Senft nor his brother Neftali, who was supervising his brother parallel-park, saw Plaintiff sprawled on the ground (T. at 132, 162). Yitzchak Senft did see Plaintiff get out of his van and look at its rear to see if there was any damage to it (T. at 117, 132). Shortly thereafter, Plaintiff got very upset and started complaining of pain (T. at 117). Yitzchak Senft said that neither police, an ambulance nor a tow-truck were called (T. at 119).
Yitzchak Senft said that after the accident, his mother and sister and his father's auto-body repair-shop business partner Jack Feldstein came-over and that he signed a letter drafted there by Feldstein regarding the accident (T. at 72-73, 81, 125-126; Plaintiff's Exhibit 1). The letter said that the Senfts took responsibility for the accident, and that if there was any problem with Plaintiff's van, they would fix it (T. at 82; Plaintiff's Exh. 1).
Plaintiff claimed that the impact caused the front of Defendants' van to attach to the rear of his van (T. at 93). Plaintiff purchased his minivan for $1,500, his van was damaged by Defendant, and the damages-repair estimate provided by a shop was for $1,500 (T. at 76, 85, 92). Plaintiff did not know why the printed portion of the estimate listed the date as January 28, 2010 while a handwritten portion on it listed the date of August 30, 2009 (T. at 98-100). He did not bring the van to Defendant Yitzchak Senft's father's repair shop because he did not trust the family (T. at 85). Plaintiff never took pictures of the damage to his van because of the pain he was in, because his phone did not have a camera and because he did not think it was important (T. at 86, 96-97).
Plaintiff's Exhibit 2 is a NYS Department of Motor Vehicles accident report completed by Plaintiff's former attorney and signed by Plaintiff in which he claims that Defendants' vehicle struck his van "hard" (T. at 83-85, 95).
Yitzchak Senft testified that the owner of the sedan arrived at the scene, was not going to make a claim, and left (T. at 119-120). Plaintiff eventually left also (T. at 120).
The Jury returned a verdict assessing 100% responsibility against the Defendants.
Damages Trial
At the time of the accident, Plaintiff was 34 years old (T. at 340-341). Plaintiff described the accident as a "strong boom" that flung him from the car and caused him to strike the ground with his neck, back, head and both knees (T. at 332, 347). He did not lose consciousness (T. at 404). Plaintiff claimed to have never suffered injury to his neck, back or knees prior to the accident and that he had been in good physical condition prior to the accident, played sports and served in the Israeli Special Forces (T. at 332, 335, 345). At the time of the accident Plaintiff was unemployed (T. at 377).
Plaintiff testified that after the accident, Defendant Yitzchak Senft provided him with a written statement that said "Igal Sagy will go to a doctor to check out his back, head, complete body check, neck also and legs also given pain. We will pay the doctor bills for this visit. Igal was not moving. We hit him. He was sitting in the car when we hit him. Yitzchak was driving when this happened. The car was closed. If there is a problem with [Plaintiff's] van, we will fix the van. Igal is complaining everything hurts me" (T. at 335; Exh. 1).
Plaintiff testified that he was in fact complaining of head, neck and knee pain after the accident, but no one called an ambulance and that he drove himself to the hospital that evening (T. at 335, 339). Plaintiff's Exhibit 8 in evidence, the Forest Hills Hospital emergency room records where Plaintiff complained of a headache as well as back and knee pain and acute muscular skeletal pain, with the records further reflecting that the knees showed mild tenderness of the bilateral patellar but no effusion (T. at 340, 343, 345; Exh. 8). Plaintiff was able to walk around the emergency room and his gait was listed as "normal" although he claimed that he was limping (T. at 369-370; Exh. 8). X-rays taken of Plaintiff's knees, spine, chest, pelvis and neck at the hospital were negative as to injuries to his spine and knees (T. at 345-346; Exh. 8). Plaintiff was told upon discharge to take ibuprofen every six hours as needed (T. at 345-346; Exh. 8).
Plaintiff testified that, about ten days after the accident and with his knees still showing visible bruising which he photographed, he received physical therapy from Dr. Joyce Goldenberg, referred by his prior attorney (T. at 347, 349-352, 375-376; Plaintiff's Exh. 12). Plaintiff discontinued treatment after about ten days due to lack of funds (T. at 352). Plaintiff resumed physical therapy several months later with neurologist David Lipshutz, also referred by his prior attorney, because he was still in pain (T. at 353-355, 374). He continued treatment with Dr. Lipshutz for about one year (T. at 354). The physical therapy records indicate service from March 3, 2010 to March 24, 2011 for electrical stimulation, hot and cold packs, therapeutic massages and exercises, for "strain and sprain" (T. at 355; Exh. 9).
Plaintiff testified that he had MRIs performed on June 7, 2010 of his back and neck, and on June 23, 2010 of his knees (T. at 354). He confirmed that after identifying problems with his neck, back and knees, Dr. Lipshutz referred Plaintiff to Dr. Mehran Manouel, an orthopedic-knee surgeon (T. at 357). Dr. Manouel performed arthroscopic knee surgery on Plaintiff's right knee on January 4, 2011 (T. at 357-359, 374-375; Plaintiff's Exh. 10).
Neither Drs. Goldenberg, Lipshutz nor Manuel testified. No surgical reports were introduced into evidence.
Plaintiff testified that he knows he needs surgery on his left knee but is afraid to do it and cannot afford it (T. at 359-360). Since his knee surgery, Plaintiff has not had medical treatment with any other doctors and is still experiencing pain in his knee, back and neck (T. at 360, 377). Plaintiff claims that the accident caused injuries to him that still affect his daily activities (T. at 362). For example, it is difficult to put on socks and shoes, wash his hair, do laundry and take long walks (T. 362). He has been treating himself with ice and heat packs and over-the-counter medication, as well as doing therapy at home (T. 363, 380). The Plaintiff claims that his injuries prevent him from playing soccer or basketball like he used to do. He noted that he does not always limp because he takes motrin or advil (T. at 362, 377-380). He was unable to work because of the accident, although he conceded that he was not employed at the time of the accident (T. at 377-378).
Radiologist Dr. Stephen Lastig was called to testify by the Defendants. He reviewed the MRI films of Plaintiff's cervical spine, left knee and right knee that were taken in June 2010 and prepared reports based on each (T. at 242, 247-248, 259; Defendants' Exhs. A - C). The spinal MRI showed evidence of multi-level disc degeneration, a process typical of aging as the discs dry-out or desiccate (T. at 248-249). Dr. Lastig testified that the MRI showed non-aging abnormality only at the C5-C6 disc, which bulged into the space between the back of the disc and spinal cord but did not impact the spinal cord (T. at 249, 263). Arthritis had developed in that area which had caused formation of bone that encroached on the tunnel (T. at 249). Dr. Lastig opined that Plaintiff's bulging disc was caused by degeneration as opposed to traumatic injury and not related to the accident (T. 250, 265). Dr. Lastig also found no evidence of acute or traumatic injury to Plaintiff's cervical spine (T. at 250, 265).
With respect to Plaintiff's knees, Dr. Lastig testified that the June 23, 2010 MRI reflected a tear in the meniscus of the left knee (T. at 252). He opined that such a tear could be caused by aging, repetitive motion, or an accident (T. at 252). Dr. Lastig could not determine how old the tear was, much less whether the tear occurred at the time of the accident, which was ten months before the MRI (T. at 252-53, 269). Dr. Lastig testified that a meniscus tear can cause tremendous pain (T. at 268). Dr. Lastig testified that the MRI of Plaintiff's right knee showed no evidence of a tear, ligament damage or traumatic injury, and that it was within normal limits of someone of Plaintiff's age (T. at 254-255).
On cross-examination, Dr. Lastig admitted that he usually testifies for the defense, although he has reviewed cases for 40 to 50 plaintiffs (T. at 258, 271-272). He never examined or treated Plaintiff (T. at 258-259).
Plaintiff's attorney asked Dr. Lastig whether "it would surprise [him] that the jury has rejected [his] opinion many times in the cases that [he] testified" (T. at 272). The defense objection to question/comment was sustained. During Plaintiff's expert Dr. Goldman's testimony, he was not asked about how many juries rejected his opinion. While counsel's rhetorical question/comment improperly injected his own unsworn testimony that juries had apparently rendered plaintiffs' verdicts because they "rejected" Dr. Lastig's testimony, referenced contents of a document not in evidence and ventured far beyond the scope of direct examination, and while litigants are entitled to a trial free from such improper comments, this Court is disinclined to find that counsel's comments were so pervasive or prejudicial as to warrant setting aside the verdict. See, e.g., Bhim v. Platz, 207 A.D.3d 511 (2nd Dep't 2022).
Dr. Donald Goldman, an orthopedist who was Plaintiff's expert medical witness, testified that he did not treat Plaintiff before or after the accident but did examine him on March 20, 2019, almost ten years after the accident (T. at 285, 287, 303-304, 315). Dr. Goldman did not review any of Plaintiff's medical records prior to examining him, but he "learned from what [Plaintiff] told him, it was a motor vehicle accident and as a former military surgeon whether I thought those injuries were permanent" (T. at 286-287). Dr. Goldman said that Plaintiff told him that while exiting Plaintiff's vehicle, "the vehicle was struck by another vehicle." (T. at 287). Dr. Goldman testified that Plaintiff complained of having suffered injury as a result of being thrown from his parked vehicle, claiming to have damaged his neck, back, both knees, as well as chipped teeth and headaches (T. at 287).
In examining Plaintiff, Dr. Goldman found loss of motion and radiating pain accompanied by "guarding" spasms (T. at 290). Dr. Goldman testified that he used an instrument called a goniometer to measure Plaintiff's range of motion and found that Plaintiff suffered a loss in range of motion in his cervical spine of between 30 to 35 degrees (30%) and 25 to 30 degrees loss in his lumbar spine (T. at 296-97). Dr. Goldman opined that Plaintiff sustained a "substantial loss of motion when he would turn his head." (T. at 296). Plaintiff complained of pain and Dr. Goldman opined that the cause of Plaintiff's spinal complaints was the accident as he was unaware of any other disease or trauma suffered by Plaintiff, also stating that "[i]t is just the history they gave me" (T. at 287, 298-299, 302, 308-309, 311-312, 318). Dr. Goldman did not know what range of motion Plaintiff had prior to the accident (T. at 318). While Dr. Goldman recalled that Plaintiff told him that Plaintiff did not suffer injuries or accidents prior to the August 28, 2009 accident, he omitted to put that in his report (T. at 308-309). Dr. Goldman testified that Plaintiff must have been violently thrown from the vehicle to explain the extent of the injuries (T. 318-319). While Dr. Goldman remembered that Plaintiff had been in the Israeli Special Forces, he did not consider that in his conclusion that Plaintiff's injuries resulted from the car accident (T. at 313).
According to several medical websites, e.g., WebMD, guarding spasms happen as an involuntary response by muscles to minimize motion or agitation of injury sites nearby.
This report, marked Plaintiff's Exh. 7 for identification, was not admitted into evidence (T. at 295).
Dr. Goldman stated that Plaintiff underwent surgery to his right knee as a result of permanent damage (T. at 299, 301). Dr. Goldman explained that cartilage is soft-tissue that acts as a buffer and stabilizer to help joints in bending and kneeling and if the cartilage is damaged, as Plaintiff's was, it does not heal and it is a permanent injury. (T. at 300-301). With respect to Plaintiff's left knee, Dr. Goldman determined that Plaintiff suffered pain, atrophy, loss of motion and that the proximate cause was the accident (T. at 301-302). Dr. Goldman did not have any pre-accident diagnostic report of Plaintiff to compare (T. at 301). At 5'9"and 220 pounds, Plaintiff was overweight and Dr. Goldman confirmed that excess weight could cause knee problems (T. at 314). Dr. Goldman also testified that a meniscal tear in the knee, caused by degeneration as opposed to an accident, would be unusual for a person of Plaintiff's age (T. 315).
Dr. Goldman was hired by Plaintiff's attorney to testify on at least one other case (T. at 305). It "could very well be" that in 51 out of 52 cases he testified for plaintiffs (T. at 307-308). Dr. Goldman had not examined Plaintiff since 2009, yet concluded Plaintiff's his injuries would be permanent (T. 303, 319-320). Dr. Goldman added that, at some point prior to his testimony about the extent, cause, prognosis and permanency of Plaintiff's injuries, he reviewed certain reports including the Forest Hill emergency room report, X-ray and MRI reports, neurodiagnostic EMG and nerve conduction studies and several reports from Plaintiff's physicians, but he had not done so at the time he prepared his post-examination report of Plaintiff (T. at 288, 315). Dr. Goldman believed that Plaintiff should undergo additional surgery on his left knee but did not prescribe any medications or diagnostic tests (T. at 315, 320-321).
Jury Charge
The jury charge, included, inter alia, the instruction that Plaintiff, with a statistical life expectancy of age 77, was estimated to live another 30 years (T. at 407, 413).
Defendant's Motion for a Directed Verdict
After both sides rested, Defendants moved for a directed verdict on the grounds that Plaintiff failed to establish a prima facie case of serious injury as defined by the Insurance Law. This Court denied Defendants' application (T. at 385-386, 390, 419, 421).
Verdict
The Jury returned a verdict in favor of Plaintiff, finding that Plaintiff sustained a significant limitation of use of a body system or function and a permanent consequential limitation of the use of a body organ or member as a result of the accident (T. at 422-423). The Jury awarded Plaintiff $400,000 for past pain and suffering (T. at 423-425). The Jury also awarded Plaintiff $800,000 for future pain and suffering over 30 years (T. at 423-425).
Issues Presented:
The issues: (1) whether this Court should set aside the Jury's verdict in favor of Plaintiff and grant judgment in Defendants' favor on grounds that Plaintiff failed to establish that he sustained a serious injury within the meaning of the Insurance Law and dismiss the complaint. If not, (2) whether this Court should set aside the damages portion of the verdict as contrary to the weight of the evidence and excessive in that it deviated from what should have been reasonable compensation to Plaintiff and whether Defendant is entitled to any other relief.
Positions of the Parties:
Defendants argue that this Court should set-aside the Jury's verdict and dismiss the complaint because Plaintiff failed to establish a prima facie case of serious injury as defined by Insurance Law § 5102(d), or at least set aside the verdict as being against the weight of the evidence and to order a new trial as to damages. In support of its argument, Defendants cite cases including but not limited to Toure v. Avis Rent a Car Sys., 98 N.Y.2d 345, 350 (2002) and Vidor v. Davila, 37 A.D.3d 826 (2nd Dep't 2007), to support that Plaintiff's verdict was based on subjective complaints alone as opposed to objective proof and therefore failed to meet the threshold of proving serious physical injury and thus must be vacated.
Insurance Law § 5102(d) defines a serious injury as "a personal injury which results in death; dismemberment; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."
Defendants discount the testimony of Plaintiff's expert medical witness Dr. Donald Goldman because they believe his opinion failed to adequately address the issue of whether Plaintiff had a pre-existing injury or degenerative condition and as such lacked an objective medical basis, citing, inter alia, Pommells v. Perez, 4 N.Y.3d 566, 574 (2005), Vidor v. Davila, 37 A.D.3d 826 (2nd Dep't 2007). Defendants further argue that Plaintiff's testimony, the lack of ambulance intervention or treatment at the accident scene, or hospital emergency room records from later that day, belie serious injury. Cf. Clark v. Basco, 83 A.D.3d at 1137.
Defendants further argue that the verdict must be set aside because there was no non-conclusory evidence that supported the jury's finding that Plaintiff's injuries were causally related to the accident. Defendants cite Valentin v. Pomilla, 59 A.D.3d 184, 184 (1st Dep't 2009), wherein that Court pointed-out that defendants had submitted a radiologist's report that the plaintiff's MRI films revealed evidence of degenerative disc disease predating the accident with no evidence of post-traumatic injury there, thus undermining a finding of serious injury under Insurance Law § 5102(d). The Court held that evidence of disc herniation and bulging, by itself, was insufficient to constitute serious injury without objective evidence of the extent of alleged physical limitations resulting from the herniation. See 59 A.D.3d at 185; see also Davis v. Cottrell, 101 A.D.3d 1300, 1303 (3rd Dep't 2012) (complaint dismissed as disc bulge alone was insufficient to show serious injury in absence of proof that it affected normal functioning or range of motion and that it was caused by accident); Vidor v. Davila, 37 A.D.3d at 827 (MRI images showing bulging and herniated discs did not establish a serious injury in the absence of objective evidence of the extent of the alleged physical limitations and their duration, and plaintiff's affidavit to that effect did not constitute such objective evidence). The Valentin Court, most importantly, found that "[a]bsent an explanation of the basis for concluding that the injury was caused by the accident, as opposed to other possibilities evidenced in the record, an expert's conclusion that plaintiff's condition is causally related to the subject accident is mere speculation, insufficient to support a finding that such a causal link exists." Id. at 59 (citing, inter alia, Brutton v. United States, 687 Fed.Appx. 56 [2nd Cir. 2017]).
The bench trial conducted in Brutton involved a passenger in a taxi that collided with a United States postal truck. About one year after the accident, the passenger told her surgeon that her neck and back hurt from the accident. See 687 Fed.Appx. at 57. He operated on her and testified at trial, but the court precluded the doctor from testifying as to whether an earlier accident she was in could have caused plaintiff's injuries as the doctor's files contained no reference to the earlier accident. Id. at 57-58. The Second Circuit also noted that the plaintiff, as a lay person, could not provide causation testimony. Id. at 58-59. The implication is that, to the extent that the instant Plaintiff testified as to his activity and fitness level prior to the accident, his testimony could not establish the nexus between the accident and his injury. Id.
Alternatively, Defendants ask that if this Court declines to set aside the damages verdict and issue a judgment for Defendants as a matter of law, the Court should set aside the verdict as contrary to the weight of the evidence and excessive and for a new trial on damages. In support thereof Defendants cite McEachin v. City of New York et. al., 137 A.D.3d 753 (2nd Dep't 2016) where the trial included testimony from plaintiff's surgeon that plaintiff reported severe back pain, walked with a limp and that a discogram showed disc fissures. Id. at 754. The surgeon administered steroid injections and implanted a spinal cord stimulator, resulting in some pain-reduction while waiting to receive a permanent implant. Id. Another surgeon testified for plaintiff about arthroscopic knee surgery he performed on plaintiff two months after the accident, and also diagnosed plaintiff with arthritis and substantial cartilage damage that were caused by the accident, although he did not record the degree of range of motion loss. Id. at 755. Last, the surgeon claimed that plaintiff would need a knee replacement. Id. Plaintiff testified that he used a cane or crutches for three weeks after the surgery, that he was still in pain and could not perform certain activities. Id. The jury returned a verdict in plaintiff's favor, awarding him $600,000 in past pain and suffering and $500,000 for 20 years of future pain and suffering. Id. Although the Second Department found that the doctor's omission of the degree of range of motion loss undermined one way of proving serious physical injury, the Appellate Division affirmed the jury's finding of serious physical injury based on the expert's qualitative assessment, which it found had an objective basis that compared the plaintiff's limitations to those of a normal person. Id. at 756. However, the Second Department found that the damages awarded for both past and future pain and suffering deviated materially from what would be reasonable under the circumstances and ordered a new damages trial unless plaintiff stipulated to a decrease to $400,000 and $350,000, respectively. Id. at 754, 756-757.
Plaintiff's response to Defendants' motion to set aside or reduce the award asserts that, pursuant to CPLR § 4406, the Defendants waived their rights to make them because they made similar motions during the trial. Plaintiff also asserts that the trial record reflects that he suffered serious injury as a result of his physical limitations caused by the August 28, 2009 accident as held in Miller v. Miller, 100 A.D.2d 577, 578 (2d Dep't 1984), where "the essential difference between the[] two types of 'serious injury' is that the 'significant limitation of use of a body function' does not require permanence, but instead requires a fact finding on the issue of whether the dysfunction is important enough to reach the level of significance. Similarly, the 'permanent loss of a body function' does not involve in any fashion the element of significance, but only that of permanence." Testimony from Plaintiff and Dr. Goldman, along with Plaintiff's exhibits, demonstrate that he met the evidentiary threshold set forth in Clark v. Basco, 83 A.D.3d 1136, 1139 (3rd Dep't 2011) and Toure v. Avis Rent a Car Sys., which found that "[t]o establish a claim under the permanent consequential limitation or significant limitation of use categories [for serious injury], the medical evidence submitted by Plaintiff must contain objective, quantitative evidence with respect to diminished range of motion on a qualitative assessment comparing Plaintiff's present limitations to the normal function, purpose and use of the affected body organ, member, function or system." Plaintiff also cites Lopez v. Senatore, 65 N.Y.2d 1017 (1985) and Licari v. Elliott. 57 N.Y.2d 230 (1982), to support that an injury need not be permanent in order to meet the threshold of "significant limitation of use of a body function or system."
In Miller, after the trial court dismissed the complaint upon a jury finding that plaintiff had not permanently lost the use of a body function and had not suffered a significant disfigurement, the Appellate Division reversed, holding that there was a serious injury and remitted the case for a trial on damages. See 100 A.D.2d at 577-578. The injuries to the infant plaintiff included a lacerated lip and muscle with scarring and a permanent inability to pucker the lips, which defendant did not contest, as well as hypersensitivity to cold. Id. The Miller Court held that serious injury had been proven not by whether it was permanent, but that "the dysfunction is important enough to reach the level of significance" as a matter of law, with the jury deciding damages based on its view of the level of significance. Id. at 578; see also Decker v. Rassaert, 131 A.D.2d 626, 627 (2d Dep't 1987) (significant limitation of use of a body function, in support of a finding of serious physical injury, does not require permanence).
In Clark, a plaintiff's car was struck in the rear, after which plaintiff drove herself to a hospital emergency room and complained of pain in her neck, back and buttocks, with X-rays there showing no fractures but degenerative changes, and was discharged with instructions to follow-up with her doctor. 83 A.D.3d at 1137. Aside from contrary medical evidence from different practitioners that showed that plaintiff was able to return to work and that her injuries were not causally related to the accident, the Court found that the clinical psychologist who diagnosed plaintiff with post-traumatic stress disorder had not conducted any neuropsychological tests needed to support her conclusions and had also failed to review plaintiff's premedical or psychological records before making the diagnosis and causally relating them to the accident. Id. at 1138. In granting summary judgment to defendant and dismissing the complaint on the grounds that plaintiff failed to show serious physical injury, the Court held that almost none of the records plaintiff provided contained qualitative or quantitative assessments of any physical limitation nor abnormality, and the one that did state that she suffered from muscle spasms and range of motion limitations, did not identify objective or diagnostic tests that supported those findings nor related the spasms to the accident. Id. at 1139.
In Lopez, 65 N.Y.2d at 1018-1019, plaintiff's treating doctor's report asserted plaintiff's injuries stemmed from defendants backing into plaintiff's parked car, and after 18 years, constituted permanent disabilities. Defendants' experts challenged plaintiff's claim of serious physical injury. Id. at 1019. The Court held that while plaintiff's doctor's repeated use of the word "permanent", it was insufficient to establish serious physical injury as such were "conclusory assertions tailored to meet statutory requirements", plaintiff's doctor's report sufficiently supported the "significant limitation of use of a body function or system" threshold for serious physical injury to create issues of fact that defeated defendants' summary judgment motion and warranted the return of the case to the trial court. Id. at 1019-1020.
In Licari, plaintiff was examined at a hospital where, prior to his release two hours later, he was diagnosed with injuries related to the car accident. 57 N.Y.2d at 233. Although plaintiff returned to work, he complained of limited lifting ability and suffered from headaches and dizziness. Id. at 233-234. After the jury found plaintiff suffered a serious injury, the Court found that his return to work showed that he was able to perform substantially all of his activities well before the 90-day disability period and his subjective complaints of headaches treated with aspirin precluded a finding of serious physical injury. Id. at 234, 238-240. To the extent plaintiff claimed his sprains limited his neck and back movements, the emergency room's doctor's testimony that he had a "very mild limitation" was insufficient qualitatively and quantitively. Id. 239.
Accordingly, Plaintiff argues that his Dr. Goldman's and Dr. Lastig's testimony, along with injury photos, MRI films and other medical records in evidence, establish that Plaintiff sustained a serious injury to his knees, cervical and lumbar regions under the "significant limitation" and/or "permanent consequential" limitation categories of serious injury. Plaintiff cites several cases in support of his position, including Sow v. Arias, 21 A.D.3d 317, 317 (1st Dep't 2005) ("The MRI films and the testimony of plaintiff and his experts provided a sufficient evidentiary basis for the jury to validly conclude that the accident caused a serious injury resulting in permanent consequential limitation of the use of his neck"). In light of this cumulative evidence, Defendant incorrectly characterized the evidence as mere subjective complaints of pain when it was actually substantiated objectively, citing Cesar v. Felix, 181 A.D.2d 852, 853 (3rd Dep't 1992) ("[I]t is clear that [plaintiff's pain] is not based on subjective complaints alone [as it] included objective proof of physical ailments, as reflected in the abnormal EEG, a concrete finding as to vision impairment, and a physician's observation as to actual, quantified limitations in the plaintiff's ability to use the cervical and lumbar areas of her spine") and Parker v. Defontaine-Stratton, 231 A.D.2d 412 (3rd Dep't 1996) ("a physician's observations as to actual, quantified limitations in the plaintiff's ability to use a body function or system qualify as 'objectively measured or quantified' since they are based on the doctor's own examination, not the plaintiff's subjective complaints.").
Plaintiff asserts the evidence presented reinforces the presumption that the jury made a reasonable interpretation of the evidence in reaching its verdict, especially since its resolution of whose expert opinion it would credit is entitled to great weight on appeal. Doyle v. Nusser, 288 A.D.2d 176, 177 (2nd Dep't 2001).
Discussion:
Should the Jury Verdict be Set Aside as a Matter of Law?
The Court is unpersuaded by Plaintiff's claim that pursuant to CPLR § 4406 Defendants waived their right to move to set aside the verdict and dismiss the complaint or, in the alternative, order a new damages trial on the grounds that damages award was excessive, because they made similar motions during the trial. Neither the statute nor the volume of case law addressing similar post-verdict motions would support such position. Perry v. Manoco Corp., 309 A.D.2d 654 (1st Dep't 2003) ("CPLR 4406 expressly permits parties, even after the denial of an oral motion for relief from a jury verdict, to move on papers for the same relief"); Licari v. Elliott, 57 N.Y.2d at 234 (after defendant unsuccessfully moved to dismiss complaint after evidence was presented to the jury and moved again on the same grounds post-verdict, verdict was subsequently set-aside by appellate court on same grounds). CPLR § 4404(a) states that a Court may set aside a verdict or any judgment and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial where the verdict is contrary to the weight of the evidence. Resolution does not involve a question of law but rather a discretionary balancing of many factors. Pineda v. Cheng Jian Zhang, 2021 NY Misc. LEXIS 202 at 2, 70 Misc.3d 134(A) (App. Term, 2nd Dep't 2021). A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict on any fair interpretation of the evidence. Canale v. Khananayev, 173 A.D.3d 965, 966 (2nd Dep't 2019); Lewis v. Vertex Const. Corp., 170 A.D.3d 990, 991 (2nd Dep't 2019); Chioffe v. Pyne, 2021 NY Misc. LEXIS 6181, 73 Misc.3d 140(A) (App. Term, 2nd Dep't 2021) (while finding that the jury could have fairly interpreted the evidence that plaintiff suffered a serious injury under the permanent consequential limitation of use of a body organ or member and significant limitation of use of a body function or system categories of Insurance Law § 5102[d], it also affirmed the trial court's reduction of the jury's award from $750,000 to $300,000); Pineda, 2021 NY Misc. LEXIS 202 at 3-4). Where a Court finds that a jury verdict is against the weight of the evidence, it grants a new trial. Pineda, 2021 NY Misc. LEXIS 202 at 3-4).
The Court of Appeals in Toure addressed three separate personal injury actions arising out of motor vehicle accidents, focusing on whether the plaintiff's medical expert established a numeric percentage of loss of range of motion to satisfy the statutory serious injury threshold. 98 N.Y.2d at 350. The Court said that an expert's qualitative assessment may suffice if it has an objective basis and compares the plaintiff's limitations to the normal condition, which can then be tested by cross-examination, challenged by another expert and weighed by a jury. Id. at 350-351. Lacking either of said basis for assessment, the expert's opinion was speculative as opposed to objective and therefore insufficient to show serious physical injury. Id. at 351; see Vidor v. Davila, 37 A.D.3d at 826-827.
Of the three personal injury actions considered in Toure, the one involving Plaintiff Nitti was where the Court of Appeals did not find serious physical injury was established. 98 N.Y.2d at 357-358. Nitti claimed that because of her accident, she was unable to return to work on a consistent basis for six months and was also unable to participate in many of her pre-accident activities. Id. at 356. Nitti's chiropractic expert testified that he examined her and found a restricted range of motion, but "that these tests were subjective in nature as they were dependent, at least in part, on plaintiff's complaints of pain." Id. The chiropractor concluded that Plaintiff had "mild partial disability" caused by the accident, restricted her from performing certain activities, and recommended further chiropractic care. Id. Examining Nitti six months later, the chiropractor diagnosed her with continued back sprain and strain caused by the accident that would continue to preclude her from certain activities. Id. His diagnosis was based upon, in part, his review of a MRI report which was not introduced into evidence, thereby inhibiting cross-examination on the MRI. Id. The defendants' motion for a directed verdict, on grounds that Plaintiff failed to show serious physical injury by failing to introduce objective medical proof, was denied by the trial court. Id. Defendants' case included no medical testimony, and the jury returned a verdict that plaintiff suffered a serious injury. Id. at 355-356, 357. While the trial court and the 4th Department upheld the verdict, the Court of Appeals reversed, noting that the plaintiff's expert conceded that the tests he administered were subjective in nature as they relied on Nitti's pain complaints. Id. at 357. The Court of Appeals noted that while an expert's conclusion based on review of a MRI could constitute objective evidence of serious physical injury, the chiropractor's reference to its use in forming his conclusion, without introducing either the film or the report, constituted insufficient objective medical proof, thereby warranting dismissal of the complaint. Id. at 358.
Here, viewing the evidence in the light most favorable to Plaintiff, it is questionable that a fair interpretation of the evidence supports a finding that Plaintiff suffered serious physical injury, much less that any injury and subsequent surgery were causally related to the subject automobile accident. Other than Plaintiff's testimony that he had been in good physical condition prior to the accident because of his earlier life in the Israeli Special Forces, as a soccer player and as a weight-lifter, Plaintiff provided little evidence that the accident had either caused permanent loss of use of any part of his body, permanent consequential limitation on such use part, significantly limited the use of any portion of him, or impaired or injured him to the extent that he could no longer substantially perform all of his prior usual and daily activities. The major exceptions being that he could no longer play soccer or basketball as he had done with his son and when he was younger. Despite multiple academic degrees, he was not employed at the time of the accident and he remained unemployed through the trial, more than twelve years after the accident. Since the accident, Plaintiff rarely sought medical treatment or physical therapy other than self-therapy at home, which was limited to ice and heat packs and over-the-counter pain medication.
Dr. Goldman admitted he was unaware whether Plaintiff had previously played sports, much less served in the Israel military or what range of motion Plaintiff had prior to the accident (T. at 311-312, 318). Dr. Goldman's conclusion that the basis of the injury was the accident was his reliance upon Plaintiff's statement and nothing more. (T. at 311-312). Aside from the hospital emergency room records, which undercut the diagnosis and severity of his injuries, Plaintiff did not introduce evidence from medical records or expert reports about the severity of his injuries and whether they were caused by his vehicle being tapped. Cf. Sarnelli v. City of New York, 181 A.D.3d 623, 625 (2nd Dep't 2020) (defense verdict upheld where treating dentist did not testify nor introduce into evidence dentist's records or x-rays showing fracture, and one of plaintiff's medical witnesses "just" relied on plaintiff's complaints); Vidor v. Davila, 37 A.D.3d at 826-827 (granting defendants' summary judgment motion where plaintiff's doctor's affirmation omitted any mention of a review of prior medical records and his opinion that injuries were caused by the current accident were speculative as opposed to objective because they relied upon plaintiff's statements); Pommels v. Perez, 4 N.Y.3d 566, 572-575 (2005) (summary judgment granted where plaintiff failed to show causality of injuries to car accident).
As such, the medical records and Dr. Goldman's testimony were analogous to those presented by the plaintiff in Cunningham v. Smith, 2020 NY Misc. LEXIS 2841, 67 Misc.3d 141(A) (App. Term, 2nd Dep't 2020). The Appellate Term reversed the trial court's denial of the defendant's summary judgment motion and dismissed the complaint, noting that the medical reports of plaintiff's neurologist said that the condition of his cervical spine was permanent but did not indicate a review of any medical records from plaintiff's subsequent car accident, making his medical opinion speculative with respect to causation of the injuries. Id. at 4. In addition, the Appellate Term found fault with the Cunningham doctor's report that concluded that plaintiff's injuries were permanent, holding that the mere use of the word was insufficient to establish a serious injury. Id. at 3. The Appellate Term also held that while plaintiff submitted medical evidence that she suffered from a herniated disc in the cervical spine, this finding was not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations from the injury. Id. Finally, the Appellate Term held that while plaintiff's neurologist set forth findings that revealed the existence of limitation in his range of motion, there was no competent evidence establishing that the limitation stemmed from the accident. Id. The evidence in Cunningham appears similar to the instant case, with the primary exception being that the instant case was presented to a jury, who heard all of the evidence including cross-examination.
The evidence of serious physical injury appears to be stronger in Canale v. Khananayev, 173 A.D.3d 965 (2nd Dep't 2019) than in the instant case, yet Canale resulted in a defense verdict on damages. In Canale, plaintiff was struck by defendants' car while walking in an intersection. Id. at 966. Her treating orthopedic surgeon testified the injury required arthroscopic knee surgery, which was acute and causally related to the accident, and that the accident had caused or exacerbated permanent injury to her spine. Id. The defense neurologist testified to no neurological injury and the defense radiologist testified that plaintiff's injuries were degenerative and unrelated to the accident. See id. After the jury found that she had not suffered a serious injury within the meaning of Insurance Law §5102(d) as a result of the accident, plaintiff moved to set aside the verdict and for a new trial on damages. Id. The trial court denied the motion, and the Second Department affirmed the denial. Id. The Second Department, albeit noting that the plaintiff showed through her treating orthopedist that "she had sustained serious physical injury" and that the opposing evidence came from a non-treating radiologist, still affirmed the jury's verdict, reinforcing prevailing case law that there is a strong presumption that a jury's resolution of credibility in its interpretation of the evidence should not be disturbed absent a showing that there was no fair interpretation for it. Id. at 966-967; see also Shehata v. Koruthu, 201 A.D.3d 761, 764 (2nd Dep't 2022) (plaintiff's motion pursuant to CPLR Law §4404[a] to set aside jury verdict finding no serious physical injury properly denied as jury could reasonably decide to credit the defendant's expert over the plaintiff's expert).
See also Sarnelli, 181 A.D.3d at 624 (injuries in auto-collision case, which included multiple dental repairs testified to by treating dentist and no defense expert witness, resulted in defense verdict on damages that was upheld).
The threshold that allows a Court to set aside a jury verdict is high. There are fewer cases where courts do so, as opposed to the number of cases where jury verdicts are upheld. See, e.g., Sarnelli, 181 A.D.3d at 624 (jury verdict that plaintiff did not sustain a fractured tooth as result of the accident was upheld despite medical evidence and defense concession that plaintiff had a broken tooth, plaintiff's testimony as to how he broke it and no defense witnesses); Canale, 173 A.D.3d 965 (jury's verdict against damages upheld despite court's implication that evidence should have supported finding of serious injury); McEachin v. City of New York et. al., 137 A.D.3d at 753 (jury verdict awarding damages upheld but reduced); Sow v. Arias, 21 A.D.3d at 317 (trial court erred in setting aside jury verdict finding serious injury on grounds that it was against the weight of the evidence when the standard is whether there was any valid line of reasoning and permissible inferences permitting the jury to reasonably conclude that the accident caused plaintiff serious injury, although First Department reduced the award by one-third), but compare with Toure, 98 N.Y.2d at 356-358.
The bulk of the decisions cited by Defendants where courts held no serious physical injury were mostly at the pre-trial motion stage, as opposed to after a jury trial. Davis v. Cottrell, 101 A.D.3d 1300 (3rd Dep't 2012) (affirming granting of summary judgment and dismissal of complaint because of insufficient proof of serious physical injury); Valentin v. Pomilla 59 A.D.3d 184, 184-186 (1st Dep't 2009) (uncontradicted medical evidence that plaintiff's knee injury was degenerative and pre-dated the accident, thereby precluding a finding of serious physical injury by virtual of the lack of a causal nexus between injury and accident, and plaintiff's own doctors reported a degenerative condition in knee); Diaz v. Anasco, 38 A.D.3d 295, 296 (1st Dep't 2007) (aside from being decided in defendants' favor upon a pre-trial motion for summary judgment, plaintiff's doctors' reports showed that injuries were not causally related to accident); Vidor v. Davila, 37 A.D.3d at 826 (reversing lower court and granting defendants summary judgment because affirmation of the plaintiff's treating physician not only acknowledged that plaintiff had sustained similar injuries in a prior car accident but also took plaintiff's word that those injuries were minor and that plaintiff had been asymptomatic prior to the new accident).
Pineda v. Cheng Jian Zhang is one of the minority of cases where an appellate court set aside a jury's damages verdict. 2021 NY Misc. LEXIS 202. In that case, plaintiff claimed she suffered a back injury as a result of an accident. Id. at 2. An MRI taken six weeks after the accident showed a herniated disc, along with a subsequent MRI showing that her continued pain was caused by the herniation and that she needed surgery on the disc. Id. Plaintiff testified she had no back injury prior to the accident and plaintiff's expert witnesses testified that she had decreased range of motion and that herniation requiring surgery was caused by the accident. Id. Defendant's sole expert witness countered that the herniation was degenerative in nature, based on his examination of plaintiff and some of her medical records but not the first MRI. Id. at 4.
The Appellate Term set aside the defense verdict, holding that no fair interpretation of the evidence supported a finding that plaintiff's injuries and subsequent surgery were not causally related to the accident. Id. The Appellate Term cited several factors, including that no evidence had been presented of any injury prior or after the accident, and that plaintiff's experts testified that they examined plaintiff and reviewed the MRIs prior to concluding that the accident caused the injuries, whereas defendant's expert arrived at his conclusion of lack of causality prior to reviewing the one MRI he did read, leading to the Appellate Term finding that this expert's opinion was "pure supposition." Id. at 4.
Notwithstanding the substantial number of cases where courts determined that plaintiffs failed to establish serious physical injury, almost all of those cases were pre-trial determinations. Pommels v. Perez, 4 N.Y.3d at 572-575; Toure v. Avis Rent a Car Sys., 98 N.Y.2d at 352 (case # 1: Toure); Kassim v. City of New York, 298 A.D.3d 431, 1171 (2nd Dep't 2002) (reversing trial court's denial of defendant's summary judgment motion because defendants established plaintiff did not sustain serious physical injury where his treating physician did not set forth objective tests used to conclude that there was restriction in the spine's range of motion, much less the degree of restriction); Cunningham v. Smith, 2020 NY Misc. LEXIS 2841; but compare with Toure v. Avis Rent a Car Sys., 98 N.Y.2d at 356, rev'g (case # 3: Nitti v. Clerrico, 291 A.D.2d 807 [4th Dep't 2002] [Appellate Division's affirmance of jury verdict finding serious physical injury overturned by Court of Appeals]).
It is established law that a jury verdict should not be aside as against the weight of the evidence unless it could not have been reached on any fair interpretation of the evidence. Shehata, 201 A.D.3d at 764; Canale, 173 A.D.3d at 966; Lewis, 170 A.D.3d at 991 (denying defendant's motion to set aside the verdict while affirming reduction of jury verdict of $750,000 for past pain and suffering to $300,000). It is likewise established law that, where conflicting testimony is presented, the jury is entitled to accept one party's expert opinion while rejecting the opinion of the other's side's expert. Chioffe, 2021 LEXIS 6181 at 4; Martinez v. Coca-Cola Refreshments USA, Inc., 187 A.D.3d 1170, 1171 (2nd Dep't 2020); Lewis, 170 A.D.2d at 991; see also Shehata, 201 A.D.3d at 764; Canale, 173 A.D.3d at 966; Doyle, 288 A.D.2d at 177. Further, when a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view. See Chioffe; see also Shehata v. Koruthu, 201 A.D.3d at 764.9
As the record of this trial includes Dr. Goldman's testimony that he used medical apparatus in order to gauge the Plaintiff's percentage loss of range of motion, there is a modicum of objective support to Dr. Goldman's conclusion that Plaintiff incurred serious physical injury as a result of the accident. Where a jury had the opportunity to hear direct testimony from witnesses on both sides, as well as cross-examination of those witnesses, the Court is reluctant to take the drastic action of rejecting the jury's verdict. Plaintiff's grasp of that threshold was tenuous, just barely breaching the threshold of showing serious physical injury through either the permanent consequential limitation of use of a body function or system or an injury or impairment of a non-permanent nature which prevents him from performing substantially all of the material acts which constitute his usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the accident. Accordingly, this Court declines to substitute its judgment for that of the jury, and is denying Defendants' motion to set aside the verdict.
Albeit Lewis v. Vertex Constr. Corp., which Plaintiff cites in support of that principle, has facts that more easily allows a court to adhere to that principle than the facts of the instant case. After the Lewis plaintiff won summary judgment on liability in a case involving a collision on a parkway, the plaintiff's treating orthopedic surgeon testified during the damages portion of the trial that the plaintiff suffered, inter alia, a fractured rib, and that he performed arthroscopic surgery on the plaintiff's knees and shoulders. See 170 A.D.3d at 990. The surgeon further testified that the injuries were caused by the accident and to their permanent and progressive nature, as well as to the permanent disability of limited arm movements. Id. Testifying for the defense was a non-treating radiologist who claimed that the MRIs showed degenerative arthritis in the knees and shoulders. Id. While this case is cited by Plaintiff in support of his argument that the verdict of serious physical injury remain undisturbed, it undercuts Plaintiff's position in a different way; Lewis had a more relevant expert witness testify to the extent and permanence of the plaintiff's injuries than the instant Plaintiff, yet in Lewis the jury's award for pain and suffering was less than that awarded here. Id. at 990-991. That the Appellate Division saw fit in Lewis to not set aside the verdict is not a case that Plaintiff should be relying upon factually, especially since in Lewis the Appellate Division upheld the trial court's reduction of the jury's already-lower damages award even further below what the instant Plaintiff was awarded here. Id.
Was the Damages Award Excessive?
This Court reviewed recent appellate decisions for guidance on this issue. In Garcia v. Fernandez, 167 A.D.3d 991, 991-992 (2nd Dep't 2018), the 31-year-old plaintiff, who was granted summary judgment on the issue of liability stemming from a two-vehicle accident, proceeded to a jury trial on damages. Id. There, plaintiff's orthopedic surgeon testified that the MRI of plaintiff's wrist showed a displaced fracture and the MRI of her spine revealed herniations that were causing pain, weakness and tingling in her left hand. The surgeon further testified that plaintiff's condition was unlikely to improve. Id. at 992. The plaintiff testified that she felt pain radiating downward from her shoulders to her hands and, at the time of trial, was still experiencing pain. Id. The jury awarded plaintiff $150,000 for past pain and suffering and $150,000 for future pain and suffering over the next 46 years. Id.
After the defendants moved to set aside the pain and suffering awards as contrary to the weight of the evidence, the trial court granted the motion to the extent of ordering a new trial on damages unless the parties stipulated to reduce the past pain and suffering award from $150,000 to $50,000 and to reduce the future pain and suffering award from $150,000 to $75,000. Id. Upon the plaintiff's appeal and the defendants' cross-appeal, the Appellate Division reversed the trial court's award-reductions, finding that the jury awards did not deviate materially from what would be considered reasonable compensation.
In Chioffe v. Pyne, 2021 NY Misc. LEXIS 6181 at 2, a jury was presented with a personal injury action wherein the 17-year-old plaintiff was a backseat passenger in a car struck in the rear by a truck, propelling plaintiff's car into a car in front of it. As liability was conceded, the jury heard plaintiff testify about her injuries (neck pain almost always; unable to do activities she could once do). Id. at 2. Plaintiff's orthopedist testified that, based on plaintiff's MRI film, the accident caused her to suffer a significant bulge in her cervical spine, which was consistent with her pain complaint, as well range of motion restrictions for which the orthopedist tested her days after the accident and again four years after the accident. Id. The jury awarded plaintiff $150,000 for past pain and suffering and $750,000, over the course of 55 years, for future pain and suffering. Id. at 3. The trial court granted defendant's motion pursuant to CPLR 4404(a) to set aside the jury verdict as against the weight of the evidence and for a new trial on the ground that the award was excessive and deviated materially from reasonable compensation to the extent that it reduced the award for future pain and suffering from $750,000 to $300,000, which was modified by the Appellate Term only to the extent that it gave plaintiff 30 days after service of the decision and order to stipulate to the reduced award, agreeing with the trial court that "[c]onsidering the nature and extent of plaintiff's injuries", the jury's verdict was excessive in that it deviated materially from what would be reasonable compensation. Id. at 1-2, 5-6.
In Nieva-Silvera v. Katz, 195 A.D.3d 1035, 1036 (2nd Dep't 2021), it was determined plaintiff would live 41 more years, presented testimony from several medical witnesses that established he suffered a herniated disc as well as tears of the medial and lateral meniscus and a partial tear of the lateral collateral ligament in his left knee. Plaintiff underwent spinal fusion and arthroscopic knee surgeries, which were only partially successful in reducing pain but included prognoses, respectively, were for more surgery in both areas as well as arthritis and a future knee-replacement. Id. Plaintiff testified that despite his surgeries, he was unable to perform many of his usual activities, such as playing soccer, cooking or dancing, because he was unable to stand for long periods of time or lift things. Id. After the jury awarded him $5,000,000 for past pain and suffering and $36,000,000 for future pain and suffering, the trial court granted defendants' motion to the extent of reducing the past pain and suffering award by 87.5% to $625,000, the award for future pain and suffering by about 97% to $1 million, and the future medical expenses by about 85% to $680,000. Id. Upon the plaintiff's appeal, "considering the nature and the extent of the plaintiff's injuries", the Appellate Division modified the trial court's past pain and suffering reduction upward to $750,000, modified upward the trial court's past pain and suffering reduction from $1 million to $1.5 million, and held that a new trial on damages would be set unless the plaintiff stipulated to the amended reductions it had made. Id.
In Pimenta v. 1504 CIA, 197 A.D.3d 670, 671 (2nd Dep't 2021), the 42-year-old plaintiff was injured during his construction job when a ladder toppled onto him, causing him to hit the ground. Plaintiff suffered injuries to the cervical and lumbar regions of his spine and knees, rendering him unable to continue in his field and plaintiff received spinal injections, surgeries and the placement of stabilizing hardware in his spine, implantation of a spinal cord stimulator, cortisone injections to both knees and arthroscopic knee surgery and physical therapy. Id. Notwithstanding some improvement to his condition as a result of these treatments and surgeries, Plaintiff suffered continued pain and loss of strength and range of motion, with additional surgeries anticipated and the jury awarded plaintiff $2 million for past pain and suffering and$15 million for future pain and suffering. Id. Upon consideration of the defendants' CPLR § 4404(a) motion, the trial court ordered a new trial on the past and future pain and suffering claims unless plaintiff agreed to reduce his award for past pain and suffering by 50% and future pain and suffering by 85%. Id. The Appellate Division noted that the reasonableness of compensation must be measured against relevant precedent of comparable cases, and that while prior damage awards in cases involving similar injuries are not binding upon the courts, they guide and enlighten as to whether a verdict constitutes reasonable compensation and upheld the trial court's reduction of the past and future pain and suffering awards. Id. at 672.
While this Court has declined to find that Plaintiff failed to establish serious physical injury, the above-cited cases are examples where a plaintiff's verdict was upheld but the damages award was modified, and the trial court is not an automatic rubber-stamp for a jury's award. Lara v. Arevalo, 205 A.D.3d 700, 701 (2nd Dep't 2022) (Appellate Division upwardly modified jury's award of past and future pain and suffering from $10,000 to $50,000, and from $40,000 to $75,500, respectively); Lewis, 170 A.D.3d at 690-691 (case cited by Plaintiff saw $750,000 award for past pain and suffering reduced by 60%); McEachin, 137 A.D.3d at 756-757 (while jury verdict for plaintiff was upheld, the appellate court reduced the pain and suffering award by 33.3% and reduced the future pain and suffering award by 30%); Vainer v. DiSalvo, 107 A.D.3d 697 (2nd Dep't 2013) (twenty-year-old pregnant car-accident victim who underwent two arthroscopic knee surgeries to repair tears and who also suffered a disc herniation and multiple disc bulges had future pain and suffering award increased from $18,000 to $300,000). Accordingly, in attempting to determine whether the jury's award deviates materially from what would be reasonable compensation, the Court is cognizant of the importance of considering relevant precedent of comparable cases. Lara v. Arevalo, 205 A.D.3d at 701-702 (car-accident victim who underwent rotator-cuff and knee surgeries had pain and suffering awards increased by the Second Department from $50,000 to $125,500, which is about 10% awarded to the instant Plaintiff); Pimenta v. 1504 CIA, 197 A.D.3d at 672; Knight v. Barsch, 154 A.D.3d 834, 835-836 (2nd Dep't 2017) (bulging discs and meniscal tear in knee after car-accident that resulted in $80,000 award for past pain and suffering did not deviate materially from what would be reasonable compensation); Doyle, 288 A.D.2d at 177 (award only for past pain and suffering of $415,000, where plaintiff was shown to have undergone back surgery and suffered severe facial scarring, was affirmed).
Upon this Court's comparison of the record of the trial with case-law precedent, this Court has reached several conclusions that are in the instant Defendants' favor. For example, this Court notes that, unlike the plaintiff in Pimenta who was employed at the time of his accident and was unable to work after that, Plaintiff in the instant case did not suffer the immediate loss of earnings that those plaintiffs suffered because the instant Plaintiff was unemployed at the time of the accident, nor did Plaintiff provide evidence that his injuries would prevent him from working any job for the rest of his life.
A comparison of the accidents themselves suggest that the plaintiffs' accidents cited above were more serious, and consequently would have resulted in more serious injuries which in turn would justify higher awards. Plaintiff's injuries apparently occurred when the non-moving vehicle in which he was sitting was either tapped by Defendants' vehicle while they were parking or was tapped by a car that was tapped by Defendant's parking vehicle. Conversely, in Garcia and McEachin, two moving vehicles collided, resulting in the plaintiffs' injuries. 167 A.D.3d at 991 and 137 A.D.3d at 754 (respectively); Vainer, 107 A.D.3d at 698. In Chioffe, the vehicle in which the plaintiff was in was rear-ended and propelled into another vehicle. 2021 NY Misc. LEXIS 6181 at 2.
A comparison of the treatments undergone leads to a similar conclusion by this Court. For example, in Pimenta, plaintiff underwent both knee and back surgeries as well as the implantation of metal hardware intended to alleviate pain and stimulate nerves. 197 A.D.3d at 671; see Lara, 205 A.D.3d at 701-702 (surgeries on the shoulder and knee); Nieva-Silvera, 195 A.D.3d at 1036-1037 ; McEachin, 137 A.D.2d at 754; Vainer, 107 A.D.3d at 698. Future necessary surgeries for the instant Plaintiff is speculative and uncertain. Nieva-Silvera, 195 A.D.3d at 1036 (plaintiff "will require knee replacement surgery"); Vainer, 107 A.D.3d at 699 (twenty-year-old plaintiff's doctor testified that she would "require additional arthroscopic surgeries and a total knee replacement in addition to physical therapy and trigger-point injections"). In sum, based on comparing factors of employment and ages of the injured parties, the nature of the actual accident, the severity of the injuries and the extent of the treatment, the instant Plaintiff's awards, if not reduced substantially, would be excessive.
Case comparisons reveal that courts will reduce awards substantially. For example, in Pimenta, the jury's pain and suffering awards were ultimately reduced by 87% ($3.25 million from $17 million). 197 A.D.3d at 671-672; Nieva-Silvera v. Katz, 195 A.D.3d at 1036 (Second Department reduced the pain and suffering awards by 94%); see also Martinez, 187 A.D.3d at 1171-1172 (after trial court upwardly modified past and future damages awards from $150,000 to $800,000, Second Department restored jury award to $150,000 as it did not deviate materially from what would be reasonable, given the conflicting expert opinions and evidence).
Where the 17-year-old plaintiff in Chioffe had her future pain and suffering award reduced by 60% from $750,000 to $300,000 by the trial court, a reduction upheld by the Appellate Term, the instant Plaintiff, who is approximately twenty years older and would have an anticipated shorter life-span than the Chioffe plaintiff's anticipated 55 more years, should expect a comparative, if not greater, decrease. And while the Second Department did not reduce the plaintiff's past and future pain and suffering awards in Garcia, a case which involved a plaintiff younger than the instant Plaintiff and with a longer anticipated future lifespan, the jury award totaling $300,000 was only one-quarter of what the instant Plaintiff was awarded. 167 A.D.3d at 992; Knight v. Barsch, 154 A.D.3d at 835-836 (bulging discs and meniscal tear in right knee after car-accident resulted in past pain and suffering award that was one-fifth of what Plaintiff in the instant case was awarded); Vainer v. DiSalvo, 107 A.D.3d at 698 (twenty-year-old car-accident victim who underwent multiple knee surgeries and suffered back injuries had future pain and suffering award increased from $18,000 to $300,000, with past pain and suffering award remaining at $67,000).
Accordingly, reducing Plaintiff's awards for past pain and suffering by 65% (from $400,000 to $140,000 and future pain and suffering from $800,000 to $280,000, respectively) should be construed to be towards the very high end of reasonable compensation for this Plaintiff, especially when comparing that percentage reduction to those in the aforementioned cases, as well as the lesser amount awarded in the seemingly more serious accident and injuries suffered by other plaintiffs like Garcia. Even the reduced total amount of $420,000, if stipulated to by Plaintiff, would be about 35% of the jury's total award of $1.2 million, a much higher percentage than what was ultimately realized by the plaintiffs after appellate award reductions in cases like Nieva-Silvera, Pimenta and Chioffe.
In Cullen v. Thumser, 178 A.D.3d 895, 895 (2nd Dep't 2019), a jury returned a verdict on the issue of damages awarding the plaintiff $25,000 for past pain and suffering and $0 for future pain and suffering. The trial court denied plaintiff's CPLR 4404(a) motion to set aside the verdict as inadequate and contrary to the weight of the evidence and for a new trial on the issue of damages. Id. The Appellate Division, "on the facts and in the exercise of discretion", reversed with costs and remitted the case back to the trial court "for a new trial on the issue of damages for past and future pain and suffering only, unless the defendants serve and file a written stipulation consenting to increase the damages awards" for past pain and suffering from $25,000 to $100,000 and for future pain and suffering from $0 to $50,000. Id. The Court's decision was based on its determination that the car accident caused the plaintiff to suffer a torn right knee meniscus requiring surgery, as well a ligament tear in his dominant hand where surgery was not performed because of evidence presented that it would not cure the damage. Id. at 896.
In Purkiss-Riddle v. New York City Tr. Auth., 89 A.D.3d 1001 (2nd Dep't 2011), a jury returned a verdict awarding a 69-year-old plaintiff $225,000 for past pain and suffering and $500,000 for future pain and suffering. The plaintiff, who injured her knee and shoulder on an escalator in defendant's subway station, received physical therapy for several months and then, about fourteen months after the accident, underwent knee surgery. Id. at 1002. Plaintiff's surgeon testified that the knee had been permanently damaged from the accident and that the damage would be progressive and that, as a result of the accident, plaintiff would need further knee surgery, physical therapy in a nursing facility and future surgery on the shoulder injured in the accident. Id. Under those circumstances, the trial court reduced the future pain and suffering award by 60% but left the past pain and suffering award undisturbed. Id. The Appellate Division agreed that the trial court's reduction in the past and future pain and suffering award did not deviate materially from what would be reasonable compensation and affirmed the trial court's decision to leave undisturbed the other award of damages. Id.
Commensurate with the decisions and awards in cases including but not limited to Cullen, Purkiss-Riddle, Chioffe, Garcia, Nieva-Silvera and Pimenta, this Court is granting Defendant's motion to the extent of setting aside the jury verdict on the issue of damages for past pain and suffering and future pain and suffering as excessive, remitting this matter for a new trial on the issue of damages for past and future pain and suffering unless, within 30 days after service upon Plaintiff of a copy of this decision and order, Plaintiff serves and files a written stipulation consent to reduce its award for past pain and suffering from $400,000 to $140,000 and future pain and suffering from $800,000 to $280,000.
Conclusion:
Therefor a new trial on the issue of damages will be held, if necessary. Plaintiff may consent to the Court's awards reductions, plus statutory interest and fees, through the filing with the Clerk of the Court in a timely fashion.
This constitutes the Decision and Order of the Court.