Opinion
Index No. 710605/2018 Motion Cal. No. 5 Motion Seq. No. 8
08-12-2024
CATHERINE LUONGO and PASQUALE ANTUOFERMO Plaintiff(s), v. DOHERTY ENTERPRISES INC., and DOHERTY ENTERPRISES, LLC, Defendants.
Unpublished Opinion
Motion Date: 11/13/23
Present: HONORABLE DENISE N. JOHNSON Justice
DENISE N. JOHNSON J.S.C.
The following papers numbered EF 149-167 read on this motion by plaintiffs CATHERINE LUONGO and PASQUALE ANTUOFERMO for, inter alia, an order pursuant to CPLR §4404(a) granting a new trial with respect to damages.
| Papers Numbered | |
| Notice of Motion-Affirmation - Statement of Material Facts - Exhibits - Service....... | EF 149-159 |
| Affirmation in Opposition - Statement of Material Facts - Exhibits - Service...... | EF 160-164 |
| Reply Affirmation-Exhibits................................ | EF 165-167 |
Upon the foregoing papers, the motion is decided as follows:
This is an action for personal injuries allegedly sustained by the plaintiff Catherine Luongo ("Luongo") on November 27, 2017. On July 5, 2023, a jury returned a verdict finding 55 % liability on the part of the defendants and 45% liability on the part of plaintiff Luongo. On August 4, 2023, following a trial on damages in this action, a jury verdict was reached. The jury awarded plaintiff Luongo $150,000 for past pain and suffering. The jury made no award to plaintiff Luongo for future pain and suffering, loss of earnings or medical expenses. The jury also awarded nothing to plaintiff Pasquale Antuofermo ("Antuofermo") for loss of services.
Plaintiffs now move, pursuant to CPLR §4404, for an order setting aside the jury verdict. Plaintiffs assert that the verdict was against the credible weight of the evidence and that this court erred in not allowing a photograph of plaintiff Catherine Luongo's hand to to be shown to the jury. Plaintiffs also assert that a juror conducted their own investigation of the plaintiff in disregard of this court's direction. Finally, plaintiffs contend that, this court should modify the verdict and award additional damages to the plaintiffs.
Plaintiffs first assert that the jury verdict was against the weight of the evidence because the liability trial jury believed plaintiffs' version of how the accident occurred. However, the liability jury's verdict does not bind a jury on damages to award any amount to a plaintiff. Questions of liability and damage represent distinct issues which must be determined separately (See, Patino v. County cf Nassau, 124 A.D.3d 178 [2d Dept. 2015]; Abrams v. Excellent Bus Service, Inc., 91 A.D.3d 681 [2d Dept. 2012]). Thus, the fact that the liability jury found that the defendant was 55 % negligent has no bearing on the amount of damages to be awarded.
Plaintiffs also contend that the jury's damage award deviates from the standard of reasonable compensation. It is uncontested that, prior to the liability trial, the parties entered into a hi/low settlement agreement with a low of $250,000 and a high of $1,200,000. New York courts have held that a high/low agreement is a settlement that is binding on the parties (See, Cunha v. Shapiro, 42 A.D.3d 95 [2d Dept. 2007]. Consequently, the plaintiffs will receive the $250,000 award that they previously agreed was reasonable. Thus, while plaintiff may disagree with the jury's award of only $150,000, they cannot now claim that the $250,000 sum, that they previously agreed on, is now unreasonable. As a result, those portions of the instant motion which seek to vacate the jury's verdict and to modify it to award more compensation to the plaintiffs are denied.
That portion of plaintiffs' motion which seeks to vacate the jury verdict due to this court's disallowance of a photograph is also unpersuasive. Following the direct examination of the plaintiff Luongo, plaintiffs' counsel attempted to introduce a photograph that was allegedly created during the course of the trial. As the photograph was never exchanged with defendants' counsel and was specifically created as a reaction to testimony previously offered at trial, the photograph was excluded. It is well-settled that, absent evidence of an abuse of discretion, a trial court is given wide discretion in making evidentiary rulings (see, Rivera v. Montefieri Medical Center, 28 N.Y.3d 999 [2016], People v. Carroll, 95 N.Y.2d 375[2000]). With this application, plaintiffs have failed to demonstrate that this ruling was an abuse of this court's discretion or that the ruling was reversible error.
Plaintiffs further contend that the jury's verdict should be set aside because a juror attempted to conduct an independent investigation. Plaintiffs assert that the jury Foreperson was observed driving outside of their home. In the affidavit submitted in support of the instant motion, plaintiff Antuofermo states that on July 30, 2023, he was standing outside of his residence when he spotted the juror driving slowly in front of his home and that she looked right at him. Plaintiff Antuofermo then states that "/t seemed like she was parked somewhere around my house and drove by to check on me and my wife, Ms. Catherine Luongo" (see, Antuofermo affidavit at paragraph 6). Finally, the affiant stated that, after the jury verdict, he informed plaintiffs' counsel of the incident.
The court may only grant a party's motion to hold an evidentiary hearing and, ultimately, direct a new trial based on an allegation of juror irregularities, where the juror's actions rose to the level of improper influence or it is demonstrated that a party's substantial right was prejudiced (see, Khaydarov v. AKI Group, Inc., 173 A.D.3d 721 [2d Dept. 2019; Gabrielle G. v. White Plains City School District, 106 A.D.3d 776 [2d Dept. 2003]). In the instant action, plaintiffs contend that the presence of a juror outside of the plaintiffs' home is evidence of jury misconduct. This court's review of the submitted affidavit reveals that plaintiff Antuofermo does not state that the juror spoke to him or anyone else at the premises. Additionally, there is no allegation that any other conduct, such as video recording, note taking or any other restricted behavior was observed. Finally, a review of the court's jury charges reveal that jurors were specifically prevented from visiting the scene of the accident. In the instant action, the jurors were prevented from visiting the scene of the Panera Bread store where plaintiff Luongo was injured. While this court did instruct jurors not to conduct any independent research, they were not forbidden from driving near the plaintiffs' residence.
Moreover, plaintiff Antuofermo's affidavit does not state that he actually observed where the juror was parked prior to driving past his home nor how long she was parked there. His statement as to her motivation for being in the area are simply speculation. As each juror is a resident of Queens County, it is not out of the realm of possibility that any juror could drive near or past the home of a plaintiff at any time. Finally, it is noted that, although plaintiff Antuofermo was in the courtroom for the majority of the damages trial and he saw every juror each day, he somehow did not recognize the jury Foreperson until after the verdict had been rendered. Curiously, his affidavit does not include an explanation on why he took such careful notice of a slow-moving car driven by a woman that he did not recognize at the time. The affidavit also fails to explain why plaintiff Antuofermo was only able to conclude that the jury foreperson was the same as the driver who rode past his home until after the jury's verdict was rendered.
Additionally, it is only plaintiff Luongo who claims present and future physical injuries. However, it is undisputed that plaintiff Luongo was not outside of her home when the jury Foreperson allegedly drove by the plaintiffs' home. Thus, even if a juror drove past the plaintiffs' home, there would have been nothing observed to influence the rest of the jury. As there was no contact was made between the juror and plaintiff Antuofermo, no physical observation of plaintiff Luongo, and no conversation with the plaintiffs, the movants have failed to demonstrate that the juror's conduct could possibly have had an improper influence on the jury or that a substantial right of the parties was impacted.
Finally, plaintiffs assert that the jury verdict must be set aside as there is no fair interpretation upon which the jury could have concluded that plaintiff Luongo was not entitled to future pain and suffering, lost wages or medical expenses and that plaintiff Antuofermo was not entitled to recover for Loss of services. New York courts have held that a jury verdict will not be set aside as against the weight of the evidence unless the jury could not have reached the verdict upon any fair interpretation of the evidence (see, Smith v. Houde 18 A.D.3d 734 [2d Dept. 2005]; Gannon v. All Car Movers, Ltd., 18 A.D.3D 702 [2d Dept. 2005/; Harris v. Marlow, 18 A.D.3d 608 [2d Dept. 2005]). "Great deference is accorded to the fact-finding function of the jury, and determinations regarding the credibility of witnesses are for the fact-finders, who had the opportunity to see and hear the witnesses" Cicillini v. City of New York, 15 A.D.3d 522 [2d Dept. 2005] denied (see, White v. Gasparrini, 295 A.D.2d 422 [2d Dept. 2002]; Benain v. New York City Tr. Auth., 277 A.D.2d 267 [2d Dept. 2000]).
In the instant matter, this court finds that the jury reached its verdict on the issue of damages upon a fair interpretation of all of the evidence presented to them. A motion to set aside a jury verdict may only be granted as contrary to the weight of the evidence only if "the evidence so preponderated in favor of [that party] that the verdict could not have been reached on any fair interpretation of the evidence" (Lolik v Big F Supermarkets, Inc., 86 N.Y.2d 744 [3d Dept. 1995] See also, Nicastro v Park, 113 A.D.2d 129 [2d Dept. 1985]. In the instant action, the admitted evidence and the testimony of each of the witnesses could reasonably have led the jury to believe that plaintiff Luongo deserved to be compensated for her past pain and suffering but that she had no need for further medical treatment, had no future pain and suffering, no loss of wages nor medical expenses. Similarly, the evidence placed before the jury could have led them to fairly concluded that plaintiff Antuofermo suffered no loss of consortium due to this accident. That portion of the instant motion which seeks to set aside the verdict as being against the weight of the evidence is denied in its entirety. Accordingly, This court hereby denies plaintiffs' motion in its entirety. The foregoing constitutes the decision and order of this court.