Opinion
680.6 CA 19-00829
02-05-2021
Kori GRASHA, Plaintiff-Respondent, v. TOWN OF AMHERST, Defendant-Appellant, et al., Defendant. (Appeal No. 1.)
BOUVIER LAW LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR DEFENDANT-APPELLANT. ROLAND M. CERCONE, PLLC, BUFFALO (ROLAND M. CERCONE OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
BOUVIER LAW LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR DEFENDANT-APPELLANT.
ROLAND M. CERCONE, PLLC, BUFFALO (ROLAND M. CERCONE OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action to recover damages for injuries she sustained in a motor vehicle collision. As a result of the accident, plaintiff suffered from neck pain, chronic headaches, and shoulder pain. In the seven years between the accident and trial, plaintiff pursued multiple forms of treatment, including chiropractic care, massages, Botox treatments, acupuncture, and shoulder surgery, to reduce her symptoms and regain her pre-accident level of activity.
The jury found in favor of plaintiff and, in relevant part, awarded her $115,000 for past pain and suffering and $600,000 for future pain and suffering. In appeal No. 1, Town of Amherst (defendant) appeals from an order and judgment entered upon the jury verdict. In appeal No. 2, defendant appeals from an order denying in part its motion pursuant to CPLR 4404 to set aside the verdict.
Initially, we note that the appeal from the final order and judgment in appeal No. 1 brings up for review the propriety of the order in appeal No. 2. We therefore dismiss the appeal from the order in appeal No. 2 (see CPLR 5501 [a] ; see generally Matter of State of New York v. Daniel J. , 180 A.D.3d 1347, 1348, 118 N.Y.S.3d 346 [4th Dept. 2020], lv denied 35 N.Y.3d 908, 149 N.E.3d 69 [2020] ).
We reject defendant's contention that the summation of plaintiff's counsel deprived defendant of a fair trial. With respect to defendant's contention that plaintiff's counsel improperly encouraged the jury to apply a time-unit formula in calculating damages for pain and suffering, we conclude that, although reference "to [a] time-unit formula for valuing pain and suffering [is] clearly an improper remark" ( Halftown v. Triple D Leasing Corp. , 89 A.D.2d 794, 794, 453 N.Y.S.2d 514 [4th Dept. 1982] ; see De Cicco v. Methodist Hosp. of Brooklyn , 74 A.D.2d 593, 594, 424 N.Y.S.2d 524 [2d Dept. 1980] ), counsel here did not directly advocate the use of such a formula. Moreover, to the extent that counsel's remarks could be construed as indirectly suggesting the use of a time-unit formula, we note that counsel coupled his comments regarding the amount requested with a reminder that jurors were the sole judges of what constitutes a reasonable verdict, and we therefore conclude that any alleged error was harmless because it did not "deflect the jury from the essential task of exercising its own sound discretion in determining the appropriate award" ( Lee v. Bank of N.Y. , 144 A.D.2d 543, 544, 534 N.Y.S.2d 409 [2d Dept. 1988] [internal quotation marks omitted]; see also Chlystun v. Frenmer Transp. Corp. , 74 A.D.2d 862, 862, 426 N.Y.S.2d 55 [2d Dept. 1980] ).
With respect to defendant's remaining challenges to plaintiff's summation, the record shows that Supreme Court sustained each of defendant's relevant objections and, when requested, gave curative instructions that corrected any possible prejudice occasioned by the purportedly improper comments (see Wilson v. County of Westchester , 148 A.D.3d 1091, 1092, 50 N.Y.S.3d 416 [2d Dept. 2017] ).
Defendant also contends that the verdict with respect to the award of damages for past and future pain and suffering is excessive. We reject that contention. In evaluating whether the jury award is excessive, we consider whether the verdict deviates materially from what is considered reasonable compensation (see CPLR 5501 [c] ; Hotaling v. Carter , 137 A.D.3d 1661, 1662-1663, 28 N.Y.S.3d 516 [4th Dept. 2016] ; Swatland v. Kyle , 130 A.D.3d 1453, 1454-1455, 12 N.Y.S.3d 738 [4th Dept. 2015] ; Inya v. Ide Hyundai, Inc. , 209 A.D.2d 1015, 1015, 619 N.Y.S.2d 440 [4th Dept. 1994] ). Because monetary awards for pain and suffering "are not subject to precise quantification ..., we look to comparable cases to determine at which point an award deviates materially from what is considered reasonable compensation" ( Huff v. Rodriguez , 45 A.D.3d 1430, 1433, 846 N.Y.S.2d 841 [4th Dept. 2007] [internal quotation marks omitted]).
Here, plaintiff was 33 years old at the time of the accident and had a projected future life expectancy of 41.9 years. The evidence at trial established that, as a result of the accident, plaintiff sustained soft tissue injuries to her neck and shoulder and had suffered daily headaches, chronic neck pain, weakness and numbness in her left arm, and decreased sensation in her left hand. Plaintiff's shoulder required surgical repair, her neck and head pain persisted, and she would need continued medical care in the future. With respect to past pain and suffering, we conclude that $115,000 does not deviate materially from reasonable compensation in light of prior comparable cases (see Barrow v. Dubois , 82 A.D.3d 1685, 1686-1687, 920 N.Y.S.2d 507 [4th Dept. 2011] ). We further conclude that the jury's award of $600,000 for future pain and suffering does not deviate materially from reasonable compensation (see Keeler v. Reardon , 49 A.D.3d 1211, 1212, 853 N.Y.S.2d 780 [4th Dept. 2008] ).
Finally, we are unable to review defendant's contention that plaintiff failed to comply with the disclosure requirements of 22 NYCRR 202.17 with respect to various medical records and reports and that she failed to disclose a lay witness to defendant until the eve of trial inasmuch as defendant failed to make a record sufficient to allow this Court to evaluate its contention (see DeFisher v. PPZ Supermarkets, Inc. , 186 A.D.3d 1062, 1062, 129 N.Y.S.3d 599 [4th Dept. 2020] ; Leeder v. Antonucci , 174 A.D.3d 1469, 1470, 106 N.Y.S.3d 490 [4th Dept. 2019] ; Resetarits Constr. Corp. v. City of Niagara Falls , 133 A.D.3d 1229, 1229, 18 N.Y.S.3d 914 [4th Dept. 2015] ).