Opinion
507103/2016
12-23-2020
Lueray DOWDY, Plaintiff, v. The BROOKLYN HOSPITAL CENTER, Defendant.
Attorney for Plaintiff, David Resnick, Esq., DAVID RESNICK & ASSOCIATES, P.C., 450 Seventh Avenue, Suite 409, New York, New York 10123. Attorney for Defendant, Patrick J. Brennan, Esq., FURMAN, KORNFELD & BRENNAN LLP, 61 Broadway Fl 26, New York, NY 10006.
Attorney for Plaintiff, David Resnick, Esq., DAVID RESNICK & ASSOCIATES, P.C., 450 Seventh Avenue, Suite 409, New York, New York 10123.
Attorney for Defendant, Patrick J. Brennan, Esq., FURMAN, KORNFELD & BRENNAN LLP, 61 Broadway Fl 26, New York, NY 10006.
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed by defendant The Brooklyn Hospital Center (hereinafter TBHC or defendant) on February 18, 2020, under motion sequence number three, for an order: (1) directing a verdict pursuant to CPLR Rule 4401 on the ground that no triable issue of fact exists concerning the absence of constructive notice of the hazardous condition that caused the plaintiff's fall; or, in the alternative, (2) vacating the verdict pursuant to CPLR Rule 4404 (a) and granting TBHC judgment notwithstanding the verdict (hereinafter JNOV) on the basis that the evidence was insufficient to submit the issue of liability to the jury; or in the alternative, (3) setting aside the liability verdict pursuant to CPLR Rule 4404 (a) as against the weight of the evidence; or, in the alternative, (4) setting aside the jury's apportionment of fault as 60% TBHC and 40% plaintiff pursuant to CPLR Rule 4404 (a) as against the weight of the credible evidence; and (5) setting aside the jury's award for past and future damages as excessive, and ordering a new trial pursuant to CPLR Rule 4404 (a) ; and (6) setting aside the jury's award of $1,100,000.00 for future medical expenses as speculative, excessive, and against the weight of the evidence, and ordering a new trial on future medical damages pursuant to CPLR Rule 4404 (a) ; and (7) ordering a collateral source hearing pursuant to CPLR Rule 4545.
Notice of Motion
Affirmation in Support
Memorandum of Law in Support
Exhibit A-C
Memorandum of Law in Opposition
Exhibits A-C
Affirmation in Reply
BACKGROUND
On May 2, 2016, plaintiff Lueray Dowdy (hereinafter plaintiff or Dowdy) commenced the instant action for damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk's office. By verified answer filed on June 24, 2016, TBHC joined issue. On September 6, 2018, plaintiff filed a note of issue.
Thereafter, on or about January 8, 2020, a jury was selected and assigned to Part 52 for a trial on the issue of liability and damages. During the liability phase of the trial three witnesses testified, the plaintiff, plaintiff's companion, Kelvin Sill, and Elvin Cruz, a security guard employed by the defendant.
Plaintiff testified that on December 9, 2015, she was working as a home health aide and was transporting her client to the defendant hospital for, among other things, dialysis treatment. After temporarily leaving her client for treatment she went down to the hospital's cafeteria for lunch. After passing the door to enter she noticed something on the floor. She went on the cafeteria food line, ordered food for herself and her patient, paid for it, and then sat down and ate. She was in the cafeteria for about 20 or 30 minutes. She then got up and walked out with her patient's food. When she walked through the exit doors she slipped, went up in the air, and came down with a leg up under her back.
Plaintiff testified that the substance she slipped on was approximately 3 to 4 inches and that it looked like it contained potatoes and carrots. She realized that she had slipped on beef stew, while exiting the cafeteria, in the same area where she saw food on the floor when she was entering the cafeteria.
Kevin Sill, plaintiff's companion for over 40 years, learned from a telephone call that the plaintiff was injured and being treated at the defendant's emergency room. He immediately went there, found her and began looking for her clothes and personal things. He found a plastic bag which contained, among other things, her boots. Upon inspecting her boots, he noticed that there were food particles stuck in the grooves at the bottom of one boot and that it appeared to him that they were pieces of peas, carrots and meat. He showed the boot to the security guard who was interviewing Ms. Dowdy and took a couple of photos of the bottom of the boot.
Elvin Cruz testified that he has been employed by the defendant for 10 years. He would conduct patrols, which included looking out for anything that might present a hazard, including spills. On December 9, 2015, he responded to an alert after the plaintiff fell. He found the plaintiff about three or four steps from the door of the cafeteria. He also testified the doors to the cafeteria were always kept open. Officer Cruz found the area where the fall occurred was clear with nothing that would cause the accident. On interviewing plaintiff in the emergency room, she informed him she slipped on something slippery as she left the cafeteria. He returned afterwards to where the fall happened and again noted nothing that, in his opinion, would have caused the fall. There was no evidence of whether there was any inspection and maintenance procedures in place at the hospital prior to or on the date of the accident. Nor was there any evidence as to whether the accident site had been inspected or cleaned at any time prior to or on the date of the accident. The jury issued a verdict on liability finding TBHC 60% at fault, and plaintiff Lueray Dowdy 40% at fault.
During the damage phase of the trial the plaintiff testified and also called Dr. Ali Guy, Dr. Robert Meislin, Dr. Andrew Cordiale and Joseph Lichtenstein, PhD as witnesses on her behalf. TBHC called Dr. Stuart Hershon, an orthopedic surgeon, and Dr. Caren Jahre, M.D., a neuroradiologist on the defendant's behalf. The jury returned a verdict after the damages portion of the trial awarding the plaintiff $500,000.00 for past pain and suffering; $1,000,000.00 for future pain and suffering over a twenty five year period; $180,084.00 for past medical expenses; $31,000.00 for past lost earnings and $1,100,000.00 for future medical expenses.
TBHC'S MOTION FOR A DIRECTED VERDICT PURSUANT TO CPLR 4401 and 4404 (a)
TBHC has moved for a directed verdict and dismissal pursuant to CPLR 4401 based on the contention that the plaintiff did not make a prima facie showing that TBHC had constructive notice of the dangerous condition of spilled food on the floor of its cafeteria. TBHC has also moved for a directed verdict and dismissal pursuant to CPLR 4404 (a) on the basis that the evidence was insufficient to submit the issue of liability to the jury.
On a legal sufficiency challenge, whether made pursuant to CPLR 4401 at the close of the plaintiff's case or pursuant to CPLR 4404 (a) to set aside the jury verdict, the relevant inquiry is whether there is any rational process by which the trier of fact could base a finding in favor of the nonmoving party ( Salas v. Bellair Laser Ctr., Inc. , 185 AD3d 746 [2nd Dept 2020] ).
To succeed on a motion for judgment as a matter of law pursuant to CPLR 4401, a defendant has the burden of showing that there is no rational process by which the jury could find in favor of the plaintiff and against the moving defendant ( Feteha v. Scheinman , 169 AD3d 871 [2nd Dept 2019] ). In determining whether the defendant has met this burden, a court must accept the plaintiff's evidence as true and accord the plaintiff the benefit of every favorable inference which can reasonably be drawn from the evidence presented at trial ( Feteha, 169 AD3d at 872 ).
It is well-settled that vacatur of a verdict based on a claim of insufficiency as a matter of law requires that the trial court determine that the jury verdict is "utterly irrational ( Killon v. Parrotta , 28 NY3d 101, 108 [2016], quoting Campbell v. City of Elmira , 84 NY2d 505 [1994] ).
A property owner has a duty to maintain its premises in a reasonably safe condition ( Croshier v. New Horizons Res., Inc. , 185 AD3d 780 [2nd Dept 2020 citing Basso v. Miller , 40 NY2d 233, 241 [1976] ). To establish a prima facie case in a slip and fall, plaintiff must show that the defendant either created the dangerous condition or had actual or constructive knowledge of the hazard ( Stone v. KFC of Middletown, Inc., 5 AD3d 106 [1st Dept 2004] ).
The standard for determining whether the evidence at trial is sufficient as a matter of law is a rigorous one, since the consequence of such a finding is a judgment in favor of the opposing party ( Cohen v. Hallmark Cards , 45 NY2d 493 [1978] ). Therefore, where the right to a jury trial exists, and the evidence presents issues of fact it is not proper for the court to direct a verdict (id. ).
Elvin Cruz's testimony raised a factual dispute regarding the presence of a slipping hazard on the area of the floor where plaintiff slipped and fell. This dispute placed the credibility of the plaintiff and Elvin Cruz in issue. It was for the jury to weigh the evidence and testimony and determine the credibility of the witnesses. It was also not irrational for the jury to credit plaintiff's testimony over that of Elvin Cruz regarding the existence of the hazardous condition causing the plaintiff's accident.
Furthermore, contrary to the defendant's contention, it was not irrational for the jury to find that the defendant had constructive notice of the spilled food on the floor of its cafeteria and that TBHC had sufficient time to remedy it and failed to do so. Plaintiff offered many Appellate Division decisions from the First and Second Department in which the existence of a dangerous condition for thirty minutes or even less time was sufficient to raise a fact question for the jury on the issue of the defendant's constructive notice of the condition. Plaintiff cited Feld v. Waldbaum (35 AD3d 652 [2nd Dept 2006] ), Huth v. Allied Maintenance Corp. (143 AD2d 634, 532 [2nd Dept 1988] ), Villaurel v. City of New York (59 AD3d 709 [2nd Dept 2009] ), In Backer v. Cent. Parking Sys. , (292 AD2d 408 [2nd Dept 2002] ), Kelsey v. Port Auth. of NY & NJ (52 AD2d 801 [1st Dept 1976] ), and Brockman v. Cipriani Wall Street (96 AD3d 576 [1st Dept 2012] ).
Consequently, TBHC's motion pursuant to CPLR 4401 to direct a verdict and to dismiss the complaint on the ground that no triable issue of fact exists concerning the absence of constructive notice of the hazardous condition that caused the plaintiff's fall is denied. Furthermore, TBHC's motion pursuant to CPLR 4404 (a) to vacate the verdict and grant TBHC a judgment in its favor notwithstanding the verdict on the basis that the evidence was insufficient to submit the issue of liability to the jury is also denied.
TBHC'S MOTION FOR A NEW TRIAL PURSUANT TO CPLR RULE 4404 (a)
The jury issued a verdict on liability finding TBHC 60% at fault, and plaintiff Lueray Dowdy 40% at fault. TBHC has moved pursuant to CPLR Rule 4404 (a) to set aside the liability verdict as against the weight of the evidence.
The apportionment of fault among the parties is generally an issue of fact for the jury ( Hernandez v. Pappco Holding Co., 136 AD3d 981, 983-84 [2nd Dept 2016], citing Donahue v. Smorto, 240 AD2d 464, 465 [2nd Dept 1997] ), and the jury's apportionment of fault should not be set aside unless it could not have been reached based upon a fair interpretation of the evidence ( Hernandez, 136 AD3d at 983-84, citing Sydnor v. Home Depot U.S.A., Inc., 74 AD3d 1185, 1187-1188 [2nd Dept 2010] ).
Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors ( Sence v. Atoynatan , 142 AD3d 600, 602—03 [2nd Dept 2016] ). It is for the trier of fact to make determinations as to the credibility of the witnesses, and great deference is accorded to the factfinders, who had the opportunity to see and hear the witnesses (Id. , citing Yanyak v. Rosenman , 134 AD3d 817, 819 [2nd Dept 2015] ).
The standard for determining whether a jury verdict is against the weight of the evidence is whether the evidence so preponderated in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence ( Tapia v. Dattco, Inc. , 32 AD3d 842, 845 [2nd Dept 2006]. Where the 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 (id. ).
Here, a fair interpretation of the evidence supports the jury's conclusion that TBHC was 60% at fault and plaintiff was 40% at fault in causing the subject accident. Plaintiff proffered her own testimony, her companion's testimony, the testimony of defendant's security guard, photographs of the bottom of her boot and other evidence. This testimony and documentary evidence supported the jury's conclusion that the plaintiff was partially at fault for not remembering and avoiding the spill that she noticed coming into the defendant's cafeteria. It further supports the jury's conclusion that the defendant had constructive notice of the spill and was also at fault in allowing the unsafe condition to exist. Finally, the jury's determination that the defendant was more at fault than the plaintiff was based on a fair interpretation of the evidence. Consequently, TBHC's motion pursuant to CPLR Rule 4404 (a) to set aside the liability verdict as against the weight of the evidence is denied.
TBHC'S MOTION TO SET ASIDE AWARD FOR PAST AND FUTURE DAMAGES
The jury returned a verdict after the damages portion of the trial awarding the plaintiff $500,000.00 for past pain and suffering $1,000,000.00 for future pain and suffering and $1,100,000.00 for future medical expenses. TBHC has moved pursuant to CPLR Rule 4404 (a) to set aside the jury's award for past and future pain and suffering as excessive and ordering a new trial.
During the damage phase of the trial the plaintiff testified and also called Dr. Ali Guy, Dr. Robert Meislin, Dr. Andrew Cordiale and Joseph Lichtenstein, PhD. as witnesses on her behalf. TBHC called Dr. Stuart Hershon, an orthopedic surgeon, and Dr. Caren Jahre, M.D., a neuroradiologist on the defendant's behalf.
The amount of the damages to be awarded to a plaintiff for personal injuries is a question for the jury, and the jury's determination will not be disturbed unless the award deviates materially from what would be reasonable compensation ( Scaccia v. Bieniewicz , 151 AD3d 900, 900 [2nd Dept 2017] ; see CPLR 5501 [c] ). Prior damage awards in cases involving similar injuries are not binding upon the courts but serve to guide and enlighten the courts in determining whether a verdict constitutes reasonable compensation (see Kusulas v. Saco , 134 AD3d 772, 774 [2nd Dept 2015], quoting Taveras v. Vega , 119 AD3d 853, 854 [2nd Dept 2014] ). Consideration also is given to other factors, such as the nature and extent of the injuries (see Diaz v. Dadabo , 174 AD3d 787, 789 [2nd Dept 2019] ).
In support of its contention, TBHC concedes that the plaintiff's ham string injury and surgical repair were caused by the subject accident. However, TBHC continued to dispute that any of the plaintiff's other claimed injuries or disabilities were caused by the subject accident. TBHC contend that the plaintiff had pre-existing degenerative conditions in her spine. TBHC then went on to cite several decisions addressing claims of excessive damage verdict awards in effort to show the jury's verdict in the instant case materially deviated from what would be reasonable compensation. In sum, TBHC contends that the jury's award for past and future pain and suffering is excessive because the plaintiff is not severely incapacitated. TBHC contends that because the plaintiff can walk, travel, cook, bathe, feed, and toilet herself independently she did not suffer injuries that would support such a high damage award.
Ms. Dowdy sustained a traumatic injury to her left hamstring tendon, necessitating the surgical re-anchoring of the tendon to the bone, as a result of the subject accident. Ms. Dowdy started to treat with Dr. Meislin in April 2016. The hamstring tendon surgery was performed in June 2016. Dr. Meislin testified that by December 2016 and August 2017 it was his opinion that Ms. Dowdy remained 100% disabled and ordered her to continue with physical therapy and pain management treatment.
Dr. Cordiale, plaintiff's back surgeon, testified that he ordered his own MRI study and opined that the plaintiff suffered a herniated disc at L4/L5 and developed spondylolisthesis at that level. Dr. Cordiale performed a discectomy and spinal fusion with screws and rods at L4/L5. Dr. Cordiale's last examination of the plaintiff was in December 2019 and he determined at that time that she remained 100 % disabled.
Dr. Guy testified that as a result of the injuries sustained in the accident, the plaintiff will continue to require medical care for the remainder of her life. That she required visits to her spine surgeon, orthopedic surgeon, and physiatrist, that she required continuing physical therapy, MRIs, EMGs, pain injections, and the help of a home health aide on a part time basis to perform activities of daily living.
Doctors Cordiale, Meislin and Guy all testified that Ms. Dowdy's injuries were causally related to her accident, that these injuries were permanent, that Ms. Dowdy was permanently disabled, and that her injuries and condition would get progressively worse over the course of her life expectancy. Both Dr. Cordiale and Dr. Guy testified that Ms. Dowdy was at increased risk for surgery in the future at adjacent levels in her lower lumbar spine.
The Court finds that the jury's determination to award the plaintiff $500,000.00 for past pain and suffering and $1,000,000.00 for future pain and suffering over twenty-five years did not materially deviate from what would be reasonable compensation.
TBHC'S MOTION TO SET ASIDE AWARD FOR FUTURE MEDICAL EXPENSES
The jury returned a verdict after the damages portion of the trial awarding the plaintiff, among other things, $1,100,000.00 for future medical expenses. TBHC has moved to set aside the jury's award for future medical expenses as excessive, speculative, and against the weight of the evidence.
Dr. Guy, plaintiff's examining physician, testified that the plaintiff was permanently disabled and that her injuries caused by the subject accident would require medical care for the rest of her life. Dr. Guy testified that the plaintiff would need visits with an orthopedic surgeon five times per year; visits with a spinal surgeon three to four times per year, visits with a physiatrist twelve times per year, weekly physical therapy, MRI's of the lumbar spine, and left hamstring every two to three years, home health aide services for twenty hours per week, interventional pain management procedures including three lumbar epidural injections three times per year for the next three to five years; twelve sets of trigger point injections per year; EMG and nerve conduction studies every two or three years, and future adjacent level spine surgery. Dr. Guy prepared a life care plan and testified regarding the frequency and cost of the elements contained in his life care plan.
Professor Lichtenstein relied on Dr. Guy's determination of plaintiff's future medical needs and on his opinion regarding their present cost. He then offered an opinion as to the cost of plaintiff's future medical care taking into consideration inflation.
Prof. Lichtenstein testified that it was his opinion that the cost of Dowdy's future medical treatment was approximately $1.4 million dollars. Their testimony provided the evidentiary basis for the $1,100,000.00 figure for plaintiff's future medical expenses.
TBHC contends that the award is excessive, speculative and against the weight of the evidence on several grounds. They initially contended that it was unsupported because it was based on the testimony of Dr. Guy, who only saw the defendant once and initially flunked premed courses in college and went to medical school overseas. TBHC also contended that the plaintiff was never in receipt of some of the types of care for which she was claiming a future need for, such as, a home attendant. TBHC also contended that neither Dr. Meislin nor Dr. Cordiale recommended or prescribed MRI's, epidural injections, trigger point injections, a home health aide, or visits after their respective surgeries, with the frequency described by Dr. Guy. TBHC also contends that Dr. Cordiale did not support Dr. Guy's contention that the plaintiff would need spinal surgery in the future.
Awards of damages for past and future medical expenses must be supported by competent evidence which establishes the need for, and the cost of, medical care ( Quijano v. American Tr. Ins. Co. , 155 AD3d 981, 983 [2nd Dept 2017], quoting Starkman v. City of Long Beach , 148 AD3d 1070, 1072 [2nd Dept 2017] ).
The testimony of an examining physician based on a review of a plaintiff's medical records and a medical examination may provide competent medical evidence of the plaintiff's future medical needs. Dr. Guy testified regarding his life care plan for future medical treatment and Prof. Lichtenstein testified as to the cost of this medical treatment 25 years into the future.
TBHC's contend that Dr. Guy's opinion is unreliable based in part on his less than stellar educational background. The jury, however, was made aware of Dr. Guy's educational background and, nevertheless, found his opinion reliable and credible.
Both Dr. Guy and Prof. Lichtenstein were qualified as experts by the Court based upon their respective qualifications.
The fact that no physician prescribed a home attendant to the plaintiff prior to the trial does not mean that she will not need one in the future. Similarly, the fact that the plaintiff has not received medical care of the type or with the frequency that she seeks in the future does not serve as evidence that she will not have such a need in the future. Moreover, contrary to the contention of TBHC, Dr. Cordiale did not disagree with Dr. Guy's opinion that future spinal surgery was necessary. Rather, he found that future operative and non-operative treatment or a combination of both will be needed. Here, the award of damages for future medical expenses was supported by the evidence.
Contrary to TBHC's argument, there is a rational view of the evidence that supports the jury's award for future medical expenses. Moreover, the jury's award for future medical expenses was based upon a fair interpretation of the evidence, and thus, was not contrary to the weight of the evidence ( Dacaj v. New York City Transit Auth. , 170 AD3d 561, 562 [2nd Dept 2019] citing Roman v. Brooklyn Navy Yard Dev. Corp ., 63 AD3d 1136, 1137 [2nd Dept 2009] ).
The jury's determination as to future medical expenses was fully supported by the expert testimony offered by the plaintiff and the amount of damages as fixed by the jury was neither irrational, speculative, against the weight of the evidence, nor excessive.
TBHC'S MOTION FOR A CPLR 4545 (c) COLLATERAL SOURCE HEARING
TBHC seeks a collateral source hearing pursuant to CPLR 4545 (c). In order to show entitlement to a hearing under CPLR 4545 (c), the defendant must tender some competent evidence from available sources that the plaintiff's economic losses may in the past have been, or may in the future be, replaced, or the plaintiff indemnified, from collateral sources ( McKnight v. New York City Transit Auth. , 150 AD3d 840, 841—42 [2nd Dept 2017] ). The moving defendant bears the burden of establishing an entitlement to a collateral source reduction of an award for past or future economic loss (id. ).
The only argument TBHC offered in support of the motion was its contention that the Affordable Care Act provides for universal availability of health insurance. This contention is insufficient to show entitlement to a hearing under CPLR 4545 (c).
CONCLUSION
The branch of Brooklyn Hospital Center's motion for an order pursuant to CPLR Rule 4401 directing a verdict in its favor on the ground that no triable issue of fact exists concerning the absence of constructive notice of the hazardous condition that caused the plaintiff's fall is denied.
The branch of Brooklyn Hospital Center's motion for an order pursuant to CPLR Rule 4404 (a) vacating the verdict and granting TBHC judgment notwithstanding the verdict on the basis that the evidence was insufficient to submit the issue of liability to the jury is denied.
The branch of Brooklyn Hospital Center's motion for an order pursuant to CPLR Rule 4404 setting aside the liability verdict as against the weight of the evidence is denied.
The branch of Brooklyn Hospital Center's motion for an order pursuant to CPLR Rule 4404 (a) setting aside the jury's apportionment of fault as 60% TBHC and 40% as against the weight of the credible evidence is denied.
The branch of Brooklyn Hospital Center's motion for an order pursuant to CPLR Rule 4404 (a) setting aside the jury's award for past and future damages as excessive, and ordering a new trial is denied.
The branch of Brooklyn Hospital Center's motion for an order pursuant to CPLR Rule 4404 (a) setting aside the jury's award of $1,100,000.00 for future medical expenses as speculative, excessive, and against the weight of the evidence, and ordering a new trial is denied.
The branch of Brooklyn Hospital Center's motion for an order pursuant to CPLR Rule 4545 ordering a collateral source hearing is denied.
The foregoing constitutes the decision and order of this Court.