Opinion
17092 Index No. 150599/17 Case No.2022–01931
01-12-2023
Gabriel SUAREZ, Plaintiff–Respondent–Appellant, v. Yves ADES et al., Defendants–Appellants–Respondents.
Peirce & Salvato, PLLC, White Plains (Roland T. Koke of counsel), for appellants-respondents. Kramer & Pollack, Mineola (Joshua D. Pollack of counsel), for respondent-appellant.
Peirce & Salvato, PLLC, White Plains (Roland T. Koke of counsel), for appellants-respondents.
Kramer & Pollack, Mineola (Joshua D. Pollack of counsel), for respondent-appellant.
Kern, J.P., Oing, Scarpulla, Pitt–Burke, Higgitt, JJ.
Order, Supreme Court, New York County (William Perry, J.), entered March 28, 2022, which, inter alia, granted plaintiff's motion for a new trial on the issue of damages, unanimously reversed, on the law, without costs, and the motion denied. The Clerk is directed to enter judgment in conformity with the verdict sheet and stipulated medical expenses.
The trial court should not have set aside the verdict based on a determination that the verdict sheet was, on its face, unclear and confusing. None of the parties or the court perceived any lack of clarity until after the jury was discharged, and there was no evidence in the trial record of substantial juror confusion (see Natoli v. City of New York, 180 A.D.3d 477, 478, 120 N.Y.S.3d 2 [1st Dept. 2020] ). Although the court stated that it gave no consideration to the posttrial juror affidavits stating that they believed that they were supposed to deduct from the damage award the amount of plaintiff's comparative fault, that was the only evidence of jury confusion provided by plaintiff. However, "[j]uror affidavits should not be used to impeach a jury verdict absent extraordinary circumstances," not present here ( Selzer v. New York City Tr. Auth., 100 A.D.3d 157, 164, 952 N.Y.S.2d 26 [1st Dept. 2012] [internal quotation marks omitted]). Moreover, plaintiff did not object to the verdict sheet or the charge until after the jury was discharged, and therefore, waived such objections (see Barry v. Manglass, 55 N.Y.2d 803, 805–806, 447 N.Y.S.2d 423, 432 N.E.2d 125 [1981] ).
The damage award of $50,000 for past pain and suffering, $200,000 for future pain and suffering and a stipulated $37,000 for future surgery, did not deviate materially from what would be reasonable compensation (see Cabrera v. New York City Tr. Auth., 171 A.D.3d 594, 595, 99 N.Y.S.3d 9 [1st Dept. 2019], lv denied 33 N.Y.3d 913, 2019 WL 4383357 [2019] ), and was not against the weight of the evidence (see Lolik v. Big V Supermarkets, Inc., 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163 [1995] ). Plaintiff admitted that he was able to run, walk, bicycle crosstown, windsurf, and engage in whatever activities he wanted since 2016. The jury award should be reinstated.
We have considered the parties remaining arguments and find them unavailing.