Opinion
2017–03076 Index No. 8375/13
09-11-2019
Alfred CHUNG, Appellant, v. Rachelle SHAW, Respondent.
Subin Associates, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, N.Y. [Brian J. Isaac, Michael H. Zhu, and Christopher Soverow ], of counsel), for appellant. Pillinger Miller Tarallo, LLP, Elmsford, N.Y. (Shawn M. Weakland of counsel), for respondent.
Subin Associates, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, N.Y. [Brian J. Isaac, Michael H. Zhu, and Christopher Soverow ], of counsel), for appellant.
Pillinger Miller Tarallo, LLP, Elmsford, N.Y. (Shawn M. Weakland of counsel), for respondent.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Larry D. Martin, J.), dated January 30, 2017. The order denied the plaintiff's motion pursuant to CPLR 4404(a) to set aside, as inadequate, a jury verdict awarding the plaintiff damages in the principal sum of only $25,000 for past pain and suffering, $0 for future pain and suffering, $25,000 for past medical expenses, and $0 for future medical expenses, and for a new trial on the issue of damages.
ORDERED that the order is modified, on the facts, by deleting the provision thereof denying those branches of the plaintiff's motion pursuant to CPLR 4404(a) which were to set aside, as inadequate, the jury verdict on the issue of damages for past pain and suffering and future pain and suffering, and for a new trial on the issue of those damages, and substituting therefor a provision granting those branches of the motion to the extent of setting aside, as inadequate, the jury verdict on those damages and directing a new trial on the issue of those damages unless the defendant shall serve and file in the Office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting to increase the award of damages for past pain and suffering from the principal sum of $25,000 to the principal sum of $150,000 and for future pain and suffering from $0 to the principal sum of $100,000; as so modified, the order is affirmed, with costs payable to the plaintiff; and it is further,
ORDERED that the time for the defendant to serve and file the written stipulation consenting to increase the award of damages, if she be so advised, shall be 30 days after service upon her of a copy of this decision and order.
The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained on March 16, 2013, when his vehicle was struck in the rear by a vehicle operated by the defendant. The plaintiff was awarded summary judgment on the issue of liability, and the action proceeded to a trial on the issue of damages. The evidence at trial established that, following the accident, the plaintiff experienced pain and tingling in his extremities. The plaintiff underwent a conservative course of treatment consisting of physical therapy, acupuncture, and chiropractic care, which failed to resolve his symptoms. On December 2, 2013, the plaintiff underwent an anterior cervical discectomy and fusion surgery at the C5–C6 level. The plaintiff testified that after the surgery, he continued to experience intermittent pain and burning sensations, and he described the loss of range of motion in his neck. The jury returned a verdict awarding the plaintiff $25,000 for past pain and suffering, $0 for future pain and suffering, $25,000 for past medical expenses, and $0 for future medical expenses. The plaintiff moved pursuant to CPLR 4404(a) to set aside the damages award as inadequate and for a new trial on the issue of damages. The Supreme Court denied the motion, and the plaintiff appeals.
A jury verdict on the issue of damages may be set aside "as against the weight of the evidence only if the evidence on that issue so preponderated in favor of the plaintiff that the jury could not have reached its determination on any fair interpretation of the evidence" ( Carter v. New York City Health & Hosps. Corp. , 47 A.D.3d 661, 663, 851 N.Y.S.2d 588 ; see Williams v. City of New York , 71 A.D.3d 1135, 1137, 898 N.Y.S.2d 208 ). "While the amount of damages to be awarded for personal injuries is a question for the jury, and ‘the jury's determination is entitled to great deference’ " ( Vainer v. DiSalvo , 107 A.D.3d 697, 698, 967 N.Y.S.2d 107, quoting Coker v. Bakkal Foods, Inc. , 52 A.D.3d 765, 766, 861 N.Y.S.2d 384 ; see Schray v. Amerada Hess Corp. , 297 A.D.2d 339, 746 N.Y.S.2d 405 ), it may be set aside if the award deviates materially from what would be reasonable compensation (see CPLR 5501[c] ; Harvey v. Mazal Am. Partners , 79 N.Y.2d 218, 225, 581 N.Y.S.2d 639, 590 N.E.2d 224 ; Vainer v. DiSalvo , 107 A.D.3d at 698–699, 967 N.Y.S.2d 107 ). "Although prior damage awards in cases involving similar injuries are not binding upon the courts, they guide and enlighten them with respect to determining whether a verdict in a given case constitutes reasonable compensation" ( Miller v. Weisel , 15 A.D.3d 458, 459, 790 N.Y.S.2d 189 ; see Nutley v. New York City Tr. Auth. , 79 A.D.3d 711, 913 N.Y.S.2d 694 ).
Under the circumstances of this case, where the plaintiff was required to undergo an anterior cervical discectomy and fusion surgery as a result of the accident, the jury's award for past pain and suffering was inadequate to the extent indicated (see Cicola v. County of Suffolk , 120 A.D.3d 1379, 1379, 993 N.Y.S.2d 131 ; Sanz v. MTA–Long Is. Bus , 46 A.D.3d 867, 868, 849 N.Y.S.2d 88 ).
Further, since it was undisputed that the cervical fusion, inter alia, permanently reduced the plaintiff's cervical range of motion, the jury's failure to award any damages for future pain and suffering was not based upon a fair interpretation of the evidence (see Conlon v. Foley , 73 A.D.3d 836, 837, 900 N.Y.S.2d 458 ; see also Conley v. City of New York , 40 A.D.3d 1024, 1026, 837 N.Y.S.2d 702 ), and was inadequate to the extent indicated (see Cicola v. County of Suffolk , 120 A.D.3d at 1379, 993 N.Y.S.2d 131 ; Sanz v. MTA–Long Is. Bus , 46 A.D.3d at 868, 849 N.Y.S.2d 88 ).
"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" ( Pilgrim v. Wilson Flat, Inc. , 110 A.D.3d 973, 974, 973 N.Y.S.2d 738 ; see Lane v. Smith , 84 A.D.3d 746, 749, 922 N.Y.S.2d 214 ). Here, the jury's award for past medical expenses, in an amount lower than requested, was reasonable in light of inconclusive testimony from the plaintiff's witnesses as to the cost of his medical care (see Starkman v. City of Long Beach , 148 A.D.3d 1070, 1072 ). Further, we decline to disturb the jury's award of $0 damages for future medical expenses (see Nicastro v. Park , 113 A.D.2d 129, 495 N.Y.S.2d 184 ).
The plaintiff's contention that the verdict was inconsistent is unpreserved for appellate review (see Barry v. Manglass , 55 N.Y.2d 803, 806, 447 N.Y.S.2d 423, 432 N.E.2d 125 ; Iovino v. Kaplan , 145 A.D.3d 974, 978, 44 N.Y.S.3d 498 ).
MASTRO, J.P., BALKIN, DUFFY and CONNOLLY, JJ., concur.