Opinion
Index No. 502912/2017
03-08-2024
DARIUSZ HRYCHORCZUK, Plaintiff, v. 1677 43RD ST LLC and BBM CONSTRUCTION CORP., Defendants. 677 43RD ST LLC, Third-Party Plaintiff, v. BBM CONSTRUCTION CORP., Third-Party Defendant, BBM CONSTRUCTION CORP., Second Third-Party Plaintiff, v. GILMAR DESIGN CORPORATION, Second Third-Party Defendant. 1677 43RD ST LLC Third Third-Party Plaintiff v. GILMAR DESIGN CORPORATION, Third Third-Party Defendant.
Unpublished Opinion
DECISION AND ORDER
Wayne Saitta, J.
The following papers read on this motion:
NYSCEF Doc Nos
Notice of Motion/Order to Show Cause/ Petition/Affidavits (Affirmations) and Exhibits
632-640,644-646
Cross-motions Affidavits (Affirmations) and Exhibits: Answering Affidavit (Affirmation)
647-652
i Reply Affidavit (Affirmation)
697
Defendant/Third-Party Plaintiff/Third Third-Party Plaintiff 1677 43RD STREET LLC (Defendant 1677) moves pursuant to CPLR § 4404 to set aside the $35,000,000 pain and suffering verdict of the jury in this action on the grounds that it is excessive.
Plaintiff, a construction worker, was severely injured when an unsecured wooden staircase he was descending fell over. Plaintiff fell to the ground and sustained injuries that have rendered him a quadriplegic.
Defendant 1677 is the owner of the premises where the accident occurred. Third-Party Defendant/Second Third-Party Plaintiff BBM CONSTRUCTION CORP., (Defendant BBM) was the General Contractor on the construction job. Defendant BBM was also Plaintiffs employer.
Second Third-Party Defendant/Third Third-Party Defendant GILMAR DESIGN CORPORATION (Defendant GILMAR) was a masonry subcontractor on the job.
On November 29, 2022, the jury returned a verdict for $15,000,000 for past pain and suffering and $20,000,000 for future pain and suffering in favor of Plaintiff.
Defendant 1677 argues that this verdict materially deviates from similar verdicts in cases involving quadriplegia and that the Court has the authority, pursuant to CPLR §§ 4404(a) and 5501(c), to align the verdict with the reported cases concerning injuries of ii this nature. Defendant 1677 further argues that the Second Department has held verdicts involving quadriplegia below $2,000,000 and other Appellate Division Departments have generally limited such awards at $12,000,000 and below. The most recent Second Department case cited by Defendant 1677 is Yu. v. New York City Health and Hospitals Corporation, 191 A.D.3d 1040 (2d Dept 2021) where the Plaintiff suffered substantial cognitive impairment and was rendered a paraplegic and the Court reduced the award for past pain and suffering from $10,000,000 to $4,000,000 and future pain and suffering from $11,500,000 to $5,000,000.
Plaintiff argues that this verdict does not deviate from what is reasonable compensation under Plaintiffs current circumstances. Plaintiff further argues that Defendant 1677 relies on incomparable cases that are much older and that such cases must be adjusted for inflation.
"The amount of damages to be awarded to a plaintiff for personal injuries is a question for the jury, and its determination will not be disturbed unless the award deviates materially from what would be reasonable compensation" (Morales v. Davidson Apartments, LLC, 193 A.D.3d 719,721 [2d Dept 2021], quoting Nay berg v. Nassau County, 149 A.D.3d 761, 762 [2d Dept 2017]; see CPLR 550i[c]).
The legislative scheme of CPLR § 5501 requires the Court to look to similar verdicts and exercise its judgment to promote greater stability in the tort system (Donlon v. City of New York, 284 A.D.2d 13,14 [2d Dept 2001]).
"Although prior damage[s] 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" (Morales, 193 A.D.3d at 721-722 , quoting Vainer v. DiSalvo, 107 A.D.3d 697, 698-699 [2d Dept 2013]).
In reviewing the cases set forth in the papers, the Court notes that Defendant 1677 and Plaintiff rely on two comparable cases that conclude damages of $5,000,000 for past pain and suffering and $10,000,000 future pain and suffering constitute reasonable compensation for similar circumstances to those of the Plaintiff.
Defendant 1677 relies on Miraglia v. H &L Holding Corp., 799 N.Y.S.2d 162, 162 (Sup. Ct. 2004), where the trial court reduced the jury's verdict for past pain and suffering from $20,000,000 to $5,000,000 and future pain and suffering from $55,000,000 to $10,000,000. The plaintiff in Miraglia fell injuring his spinal column rendering him a wheelchair bound paraplegic. Here, Plaintiff fell injuring his spinal column resulting in quadriplegia and limiting him to a motorized wheelchair. However, Defendant 1677 distinguishes that the plaintiff in Miraglia was 35 years old at the time of his injury whereas here Plaintiff was 55 years old at the time of his injury resulting in a 20-year difference in life expectancies.
Plaintiff concedes that the injury sustained in Miraglia is similar to the injury sustained by Plaintiff, while arguing that the award in Miraglia is now 20 years old.
Plaintiff relies on Saladino v. American Airlines, 500 Fed.Appx 69 (2d Cir 2012) where the Second Circuit affirmed a jury award for $5,000,000 for past pain and suffering and $10,000,000 for future pain and suffering in a quadriplegic case. The lower District Court case that was affirmed applied New York law. Like in Miraglia, Plaintiff raises the age of this case, as it's been 12 years since the Saladino verdict was awarded.
Defendant 1677 concedes the stark similarities between the injuries of the plaintiff in Saladino and that of Plaintiff. However, Defendant 1677 again distinguishes the age differences of the two different Plaintiffs. In Saladino, the plaintiff was 36 years old at the time of his injury whereas here Plaintiff was 55 years old at the time of his injury resulting in a 19-year difference in life expectancies.
Based on the foregoing, this Court finds that the jury's award for $15,000,000 for past pain and suffering and $20,000,000 for future pain and suffering is excessive and deviates from what is reasonable compensation under Plaintiffs current circumstances.
Based on Plaintiffs age, in comparison to the cases presented, and adjusting for inflation since the time of those decisions, this Court finds that an award of $8,357,143 for past pain and suffering and an award of $11,142,857 for future pain and suffering to if be reasonable compensation.
WHEREFORE it is hereby ORDERED that Defendant's motion to set aside the verdict as excessive is granted unless Plaintiff consents to reduce the jury award for past pain and suffering from $15,000,000 to $8,357,143 and for future pain and suffering from $20,000,000 to $11,142,857.
This constitutes the Decision and Order of this Court.