Opinion
11833N Index 25303/15E
07-16-2020
Kenia L. CABRERA, Plaintiff–Appellant–Respondent, v. The PORT AUTHORITY OF NEW YORK and New Jersey, et al., Defendants–Respondents–Appellants.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant-respondent. Port Authority Law Department, New York (Cheryl N. Alterman of counsel), for respondents-appellants.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant-respondent.
Port Authority Law Department, New York (Cheryl N. Alterman of counsel), for respondents-appellants.
Gische, J.P., Kapnick, Webber, Kahn, Gonza´lez, JJ.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about April 15, 2019, which denied plaintiff's motion to set aside so much of a jury verdict that set the award for future pain and suffering at three years, and granted defendants' motion to set aside the verdict only to the extent of setting aside the damage verdict and ordering a new trial on damages, unanimously modified, on the law, to grant defendants' motion to set aside the jury verdict as to liability, the matter remanded for a new trial, and otherwise affirmed, without costs.
Plaintiff, an employee at a Dunkin Donuts franchise in LaGuardia Airport, was involved in an accident with a salt spreading truck operating in parking lot 10 of the airport during a snowfall. The trial court erred in truncating proof on the issue of whether lot 10 was public or private. This error then directly impacted whether the jury should have been charged with the recklessness standard as set forth in Vehicle and Traffic Law § 1103, or Vehicle and Traffic Law § 1163 (see also Groninger v. Village of Mamaroneck, 17 N.Y.3d 125, 927 N.Y.S.2d 304, 950 N.E.2d 908 [2011] ; Krausch v. Incorporated Vil. of Shoreham, 87 A.D.3d 715, 928 N.Y.S.2d 769 [2d Dept. 2011] ). The error in the charge warrants a new trial (see Reis v. Volvo Cars of N. Am. , 24 N.Y.3d 35, 993 N.Y.S.2d 672, 18 N.E.3d 383 [2014] ).
The court also erred in precluding defendants' accident reconstructionist from testifying (compare Vinci v. Ford Motor Co. , 45 A.D.3d 335, 337, 846 N.Y.S.2d 9 [1st Dept. 2007] ; Marsh v. Smyth, 12 A.D.3d 307, 307–308, 785 N.Y.S.2d 440 [1st Dept. 2004] ). The court's in limine inquiry of the expert concerning scientific studies was not relevant, as the subject of the testimony, accident reconstruction and perception reaction time are not novel scientific theories, such as to require a Frye hearing (see Obey v. City of New York, 29 N.Y.3d 958, 51 N.Y.S.3d 493, 73 N.E.3d 850 [2017] ; Thorne v. Grubman, 40 A.D.3d 375, 836 N.Y.S.2d 117 [1st Dept. 2007] ). The proposed expert testimony was based on evidence in the record concerning the accident, and was not entirely speculative (see generally Soto v. New York City Tr. Auth. , 6 N.Y.3d 487, 494, 813 N.Y.S.2d 701, 846 N.E.2d 1211 [2006] ). Similarly, defendants' notice of expert exchange was not insufficient such as to warrant his in toto preclusion. The remedy for any alleged failures in specificity could have been handled by limiting his testimony to the subject matters listed in the exchange ( CPLR 3101[d] ).
Plaintiff failed to preserve her argument that the jury's verdict was inconsistent, because it awarded future damages for a period of only three years, yet awarded twelve million dollars on that claim (see Lowenstein v. Normandy Group, LLC, 51 A.D.3d 517, 518, 859 N.Y.S.2d 29 [1st Dept. 2008] ). Nevertheless, in light of the excessive nature of the jury's award (e.g. Dacaj v. New York City Tr. Auth. , 170 A.D.3d 561, 97 N.Y.S.3d 19 [1st Dept. 2019] ; Williams v. City of New York, 105 A.D.3d 667, 964 N.Y.S.2d 134 [1st Dept. 2013] ), the court properly ordered a new trial on damages. Retrial on damages is also necessary because defendants' expert medical witness was improperly barred from testifying on the issues of whether there was evidence of a traumatically induced injury, whether the surgeries undergone by plaintiff were necessary or appropriate, and whether he believed future surgery would be necessary.