Opinion
49128/97.
Decided February 10, 2006.
Upon the foregoing papers, third-party defendant Allied Extermination ("Allied") moves for an order 1) granting it leave to renew its post-trial motion, 2) vacating the post-trial order of this court dated January 24, 2005 on grounds of fraud, 3) striking plaintiff Kisnet Brooks' complaint and/or claim for damages, or alternatively, 4) granting a new trial on damages, 5) granting an open commission pursuant to CPLR 3108 for the deposition of William Baez, William Z. Schulman, Esq., Yenis Cabrera and a caseworker from the Hudson County Department of Social Services, and 6) directing plaintiff to provide authorizations for employment records from all New Jersey employers, New Jersey Motor Vehicle Commission and the Hudson County New Jersey Department of Social Services from 1995 to the present. Defendant Maintenance Service Resources, Inc. ("MSR") cross-moves for identical relief.
Plaintiff commenced this action to recover damages for personal injuries sustained when she fell into a hole in the floor at the place of her employment. Following a trial on liability and damages, the jury found in favor of plaintiff and against defendants and awarded damages in the amount of $2,516,000.00, consisting of $14,000.00 for past medical costs, $287,000.00 for past lost earnings, $450,000.00 for past pain and suffering, $25,000.00 for future medical costs for 37 years, $1,000,000.00 for future lost earnings for 20 years, and $740,000.00 for future pain and suffering for 37 years. Following the verdict, Allied and MSR (hereinafter referred to as "defendants") each moved for an order granting, inter alia, a new trial on damages on grounds that the verdict was against the weight of the evidence, the jury charge and verdict sheet were in error, and that the court erred in permitting testimony about medical reports not in evidence. By order dated January 24, 2005, this court granted those branches of defendants' motions seeking to reduce or set aside the verdict only to the extent of:
"striking the award for future medical expenses; striking the award for past loss of earnings to the extent it includes a projected yearly increase, and thus reducing this award to $197,753.54; striking the award for future loss of earnings to the extent it includes a projected yearly increase, and thus reducing the award to $439,452.80, and as to this award, modifying it by deleting the provision in the judgment for future loss of earnings and substituting a provision severing plaintiff's cause of action to recover these damages and granting a new trial with respect thereto, unless the parties stipulate, within 30 days of the date of service upon plaintiff of this order with notice of entry, to a reduced award for future loss of earnings of $395,506.80; and modifying the judgment by deleting the provision thereof which awarded plaintiff $450,000 and $740,000 for past and future pain and suffering, respectively, and substituting therefor a provision severing plaintiff's cause of action to recover these damages and granting a new trial with respect thereto, unless the parties stipulate, within 30 days of the date of the service upon plaintiff of this order with notice of entry, to a reduced award for past and future pain and suffering of $175,000 and $300,000, respectively."
The January 24, 2005 order was entered on February 7, 2005. On or about February 9, 2005, defendants filed a notice of appeal to the Appellate Division, Second Department where the matter is currently pending.
The instant motion to renew the January 24, 2005 order was brought by defendants based on their recent discovery of certain facts and evidence with regard to plaintiff's residence, income stream and physical condition following the accident, which defendants claim contradicts plaintiff's trial testimony and which would have substantially weighed upon the jury's assessment of damages. Defendants cite the following testimony given by plaintiff at trial on January 23, 2004 with respect to her residing with family at an address in Brooklyn:
Q. The address you're living at now with the family, you're living there for how long with them?
A. About some twenty years or more. (Tr. 42.)
* * *
Q. Was your residence that — you resided with other people; right?
A. Yes.
Q. That hasn't changed at all since now, it's the same living place where you were then?
A. Same location.
Q. You didn't have to move in with family as a result of the accident, because you were already living there; right?
Is that right?
THE COURT: I'm sorry did you respond?
A. Yes. (Tr. 122.)
Defendants submit new evidence on this motion which they claim renders the above testimony false and demonstrates that plaintiff perpetrated a fraud on the court. The new evidence includes: an application by plaintiff for a New Jersey Driver Licence, dated September 13, 2001, which listed a Cliffside Park, New Jersey P.O. Box as her mailing address and wherein she indicated that she did not suffer from any physical disorder; a New Jersey Motor Vehicle Services driver inquiry listing a West New York, New Jersey address as the residence of plaintiff; plaintiff's answer to a summons and complaint filed against her in New Jersey Superior Court, dated May 24, 2004 wherein she averred that she resided at "115-76th Street, North Bergen, New Jersey," and which involved a landlord-tenant dispute between plaintiff and the owner of said premises; plaintiff's answer to interrogatories served in said action, dated July 28, 2004 wherein she stated that she lived at the aforesaid address from October 2000 to the present; in addition to other evidence showing plaintiff having an income stream in the amount of $10,400 from October 2000 to October 2001; having received a housing grant from the Hudson County Department of Social Services after October 2001; and defending an assault complaint filed in New Jersey by William Baez.Defendants maintain that the discovery of evidence showing that plaintiff resided in New Jersey for a period of almost four years before trial from October 2000 is critical because during the damages portion of the trial plaintiff repeatedly testified that she lived in Brooklyn with her family for the entire time period from the date of the accident through the time of trial, suffered anguish in not being able to assist the household and struggled to commute daily to her job at Home Depot in New Jersey. Defendants also contend that the license application and the assault complaint is proof that plaintiff did not suffer a substantial disability as a result of the accident.
CPLR 2221 (e) provides:
(e) A motion for leave to renew:
1. shall be identified specifically as such;
2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and
3. shall contain reasonable justification for the failure to present such facts on the prior motion.
Defendants have put forth a reasonable justification for not presenting the new facts on the prior motion in that they had no cause to disbelieve plaintiff's consistent representations throughout this action that she resided with her family in Brooklyn. As a result, defendants' motions for renewal are granted.
"It is true that generally newly discovered evidence going only to credibility is not a basis for setting aside a verdict" ( Trapp v. Am. Trading and Prod. Corp., 66 AD2d 515, 518). However, CPLR 5015 (a) vests courts with the discretionary power to relieve a party from a judgment or order upon the grounds of, inter alia, "newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404" or "fraud, misrepresentation, or other misconduct of an adverse party" ( Prote Contr. Co. v. Bd. of Educ., 230 AD2d 32, 39; Olwine, Connelly, Chase, O'Donnell Weyher v. Valsan, Inc., 226 AD2d 102).
Contrary to the argument of plaintiff, the new evidence offered by defendants is not merely a collateral attack on plaintiff's credibility, but rather is pertinent to the issues of pain and suffering, loss of income, and plaintiff's physical abilities following the accident. Had this evidence been presented at trial, the jury likely would have considered same in their assessment of damages, notwithstanding any determination with respect to plaintiff's credibility. This court therefore finds that in the interest of justice a new trial on damages is warranted in light of the new facts presented ( see Pizzi v. Anzalone, 261 AD2d 374). As a result, defendants motions are granted to the extent that the award of damages is set aside, a new trial on damages is ordered, and defendants shall be entitled to additional discovery with respect to the new evidence. A preliminary conference on the issue of additional discovery with respect to the new evidence is to be held in the Intake Part of this Court on March 17, 2006 at 9:30A.M. The remaining branches of defendants' motions are denied.
The foregoing constitutes the decision and order of the court.