Opinion
4293301
Decided March 31, 2005.
Plaintiff Mutana Almansoob moves, pursuant to CPLR § 4404 (a), to set aside that portion of the September 28, 2004-jury verdict that awarded him $50,000 in damages for past pain and suffering and denied him any award for future pain and suffering, on the grounds that the award was against the weight of the evidence and that the interests of justice warrant an award for future pain and suffering, or in the alternative, a new trial on the issue of damages. For the following reasons this motion is denied.
Background
The four plaintiffs, on September 25, 1999, were traveling across the Brooklyn Bridge from Manhattan to Brooklyn, when their vehicle was hit in the rear by a vehicle owned and operated by defendant, Duk Ho Choi. As a result of this impact, plaintiffs' vehicle was pushed into the rear of the vehicle owned and operated by Rahman Nafeeza. On October 28, 2003, summary judgment on the issue of liability was granted to all plaintiffs in the instant action, as well as to Rahman Nafeeza against Duk Ho Choi in a related action, Index No. 32276/01. Both cases were ordered to be tried jointly and they proceeded to trial on the issue of damages against Duk Ho Choi. During the pendency of the damages trial Rahman Nafeeza settled her action against defendant Duk Ho Choi.
At the trial, plaintiff Mutana Almansoob testified that as a result of the impact upon his vehicle he was jolted forward and back, and injured his lumbar and cervical spines, shoulders and right knee. He was taken by ambulance to Long Island College Hospital, where he was treated and released. Plaintiff then began chiropractic and related treatment with Drs. Giulio Caruso and Nestor Nicolaides for approximately thirteen months.
Plaintiff further testified he was referred to a board-certified orthopedic surgeon, Dr. Charles De Marco, for complaints about his right shoulder. After physical therapy failed to alleviate his symptoms and pain, Dr. De Marco performed surgery, on May 18, 2000, to plaintiff's right shoulder for multidirectional instability, Grade II synovitis and chondromalacia of the anterior aspect of the glenoid labrum. On June 1, 2000, plaintiff underwent a second surgical procedure involving an open capsular shift and repair of a Bankart lesion in the right shoulder.
Plaintiff testified about loses of strength and feeling that he previously had in his right shoulder, and about pain and numbness he feels continuously. He also testified that a result of the injuries he sustained in the accident, he was unable to work at all for approximately three months, and then could work for only limited periods of time, and that his ability to enjoy life was impaired.
Presented into further evidence on behalf of plaintiff were: hospital records; MRI films; and, the testimony of Dr. Robert Schepp, a board-certified radiologist, Dr. Nicolaides and Dr. De Marco. Plaintiff and his expert witnesses also testified about injuries to plaintiff's lumbar and cervical spines, as well as his right knee. All of plaintiff's witnesses were cross-examined by opposing counsel.
Dr. Daniel Feuer, a board-certified neurologist, testified on behalf of defendant. Dr. Feuer admitted that he did not examine plaintiff's right shoulder. Defendant did not call as an expert, Dr. Robert Orlandi, who examined plaintiff's right shoulder. The Court granted plaintiff's request and gave the jury a missing witness charge with respect to defendant's failure to call Dr. Orlandi as a witness.
At the conclusion of its deliberations the jury awarded damages to all four plaintiffs, including an award of $50,000 to plaintiff Mutana Almansoob for past pain and suffering only.
Discussion
The power of the court to set aside a jury verdict and order a new trial is discretionary. It is codified in CPLR § 4404 (a), which states:
(a) Motion after trial where jury required. After a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict or any judgment entered thereon 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 of a cause of action or separable issue where the verdict is contrary to the weight of the evidence, in the interest of justice or where the jury cannot agree after being kept together for as long as is deemed reasonable by the court.
This broad power is invoked only when the jury verdict is against the weight of the evidence. In Cohen v. Hallmark Cards, Inc., 45 NY2d 493, 499 (1978), the Court instructed that, "the question whether a verdict is against the weight of the evidence involves what is in large part a discretionary balancing of many factors ( see Mann v. Hunt, 283 App. Div. 140)." In applying the Cohen v. Hallmark Cards, Inc. standard, the Appellate Division in Nicastro v. Park, 113 AD2d 129, 133 (2nd Dept 1985), instructed:
The fact that determination of a motion to set aside a verdict involves judicial discretion does not imply, however, that the trial court can freely interfere with any verdict that is unsatisfactory or with which it disagrees. A preeminent principle of jurisprudence in this area is that the discretionary power to set aside a jury verdict and order a new trial must be exercised with considerable caution, for in the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict. Fact-finding is the province of the jury, not the trial court, and a court must act warily lest overzealous enforcement of its duty to oversee the proper administration of justice leads it to overstep its bounds and "unnecessarily interfere with the fact-finding function of the jury to a degree that amounts to an usurpation of the jury's duty" ( Ellis v. Hoelzel, 57 AD2d 968; accord, Zolli v. Dubois, 88 AD2d 951; Durante v. Frishling, supra [ 81 AD2d 631]; Facteau v. Wenz, 78 AD2d at p. 932) This is especially true if a verdict is contested solely on weight of the evidence grounds and interest of justice factors have not intervened to flavor the judicial response to the motion. Absent such complications, the challenge is directed squarely at the accuracy of the jury's fact-finding and must be viewed in that light. [Emphasis added]
See Kiley v. Almar, Inc., 1 AD3d 570 (2nd Dept 2003); Abenante v. Star Gas Corporation, 13 AD3d 405 (2nd Dept 2004); Pedras v. Authentic Renaissance Modeling and Contracting, Inc., ___ AD3d ___, 2005 NY Slip Op 02238 (2nd Dept 2005).
In Hernandez v. Carter and Parr Mobile, Inc., 224 AD2d 586 (2nd Dept 1996), the Court instructed that "it is beyond cavil that the determination of the jury which observed the witnesses and the evidence is entitled to great deference." See Yacobellis v. National Amusements, Inc., 289 AD2d 485 (2001); Aprea v. Franco, 292 AD2d 478 (2nd Dept 2002); Bendersky v. M O Enterprises Corp., 299 AD2d 434 (2nd Dept 2002); Shaw v. Board of Educ. of City of New York, 5 AD3d 468 (2nd Dept 2004); Cicillini v. City of New York, 15 AD3d 522 (2nd Dept 2005).
Plaintiff's affirmation in support of his motion fails to include any exhibits to support his arguments with respect to specific evidence and specific testimony presented at trial. Plaintiff's counsel failed to quote from the trial record or offer copies of relevant medical evidence in support of his characterizations of the testimony and evidence. With only the general conclusory statements of plaintiff's counsel presented, as well as the Court's own recollection of the trial, this Court cannot disturb the jury's verdict. The jury observed the witnesses, measured their credibility, and weighed the evidence. This Court must follow the instructions of the Appellate Division, Second Department, as it held in Shaw v. Board of Educ. of City of New York, supra, that a "jury verdict is entitled to great deference and should be set aside as against the weight of the evidence only when it could not have been reached on any fair interpretation of the evidence." See Piatek v. New York City Transit Authority, 14 AD2d 685 (2nd Dept 2005). This court finds that the jury in the instant case had a rational basis for its verdict and cannot find any reasons to set aside the jury's verdict and increase the damages award to plaintiff, or in the alternative order a new trial. Rhabb v. New York City Housing Authority, 41 NY2d 200 (1976); Dhanessur v. Bugia, Inc., 4 AD3d 499 (2nd Dept 2004); Cicalese v. Myles A. Carter, D.D.S., P.C., 8 AD3d 523 (2004).
Plaintiff's counsel argues correctly that a trial court has the power to review whether a jury's award for damages is inadequate, and has the duty to set it aside if it deviates materially from what would be reasonable. However, the amount of damages to be awarded for personal injuries is primarily a question of fact for the jury. In Schare v. Welsbach Electric Corporation, 138 AD2d 477 (2nd Dept 1988), the trial judge set aside as inadequate a jury award of $65,000 for pain and suffering in a pedestrian knockdown case, and ordered a new trial on damages unless defendant Welsbach stipulated to the entry of a $125,000 judgment for plaintiff. The Appellate Division in reversing the trial judge, held at 478, that, "[i]t is well settled that the amount of damages to be awarded for personal injuries is primarily a question of fact for the jury (see, Jandt v. Abele, 116 AD2d 699; Senko v. Fonda, 53 AD2d 638)."
In the instant case, the jury listened to the testimony of plaintiff and expert witnesses for both sides, weighed their demeanor and credibility, and evaluated the evidence. In no way can this Court set aside this verdict, or in the alternative increase the $50,000 jury award, based upon only general statements and conclusions of plaintiff's counsel that the jury failed to make a fair interpretation of the evidence. See Schare v. Welsbach Electric Corporation, supra; Lolik v. Big V Supermarkets, Inc., 86 NY2d 744, 746 (1995); Corcoran v. People's Ambulette Service Inc., 237 AD2d 402 (2nd Dept 1997); Poggi v. Sexton, 248 AD2d 521 (2nd Dept 1998); Stylianou v. Calabrese, 297 AD2d 798 (2nd Dept 2002); Balsam v. City of New York, 298 AD2d 479 (2nd Dept 2002); Hedaya Home Fashions, Inc. v. American Motorists Insurance Company, 12 AD3d 639 (2004).
In the instant case, as in Sorokin v. Food Fair Stores, Inc., 51 AD2d 492, 493 (2nd Dept 1976), "[t]he credibility of the witnesses, the truthfulness and accuracy of the testimony, whether contradicted or not, and the significance of weaknesses and discrepancies are all issues for the trier of the facts." The jury performed its function and "properly considered the conflicting testimony of the witnesses and made its determination, which was not against the weight of the evidence." Gagliardi v. Madden, 207 AD2d 478 (2nd Dept 1994).
Conclusion
For the aforementioned reasons, plaintiff's motion, pursuant to CPLR § 4404 (a), to set aside that portion of the September 28, 2004-jury verdict in the instant matter which awarded him $50,000 in damages for past pain and suffering, on the grounds that the jury award was against the weight of the evidence and in the interests of justice warrant an increase in the award, or in the alternative, a new trial on the issue of damages, is denied.