Opinion
No. 49820.
02-06-2017
Diane McDONALD and Her Husband, Steven Colletti, Plaintiffs, v. COUNTY OF WARREN, Defendant.
Powers & Santola, LLP, Albany (John K. Powers of counsel), for plaintiffs. FitzGerald, Morris Baker & Firth, P.C., Glens Falls (Asish A. Nelluvely of counsel), for defendant.
Powers & Santola, LLP, Albany (John K. Powers of counsel), for plaintiffs.
FitzGerald, Morris Baker & Firth, P.C., Glens Falls (Asish A. Nelluvely of counsel), for defendant.
ROBERT J. MULLER, J.
CPLR 4403 provides that, "[u]pon the motion of any party or on [its] own initiative, the [Court] required to decide [an] issue may confirm or reject, in whole or in part, the verdict of an advisory jury ..., may make new findings with or without taking additional testimony; and may order a new trial or hearing." It is in this posture that the issues presented by this action have duly come on for trial before this Court—with an advisory jury empaneled on notice—on December 15, 16, 19, and 20, 2016 and January 3, 4, and 5, 2017. Having now heard the allegations and proofs of the respective parties, having carefully reviewed plaintiffs' Exhibits "2, 4, 9, 64–78, 80–89, 91, 93–100," all of which were received into evidence, together with Court Exhibits "1" and "2," and having had a lengthy opportunity to observe the demeanor of the witnesses called to testify and having made determinations on issues of credibility with respect to these witnesses, the Court is presented with plaintiffs' motion for an Order confirming the January 5, 2017 verdict or, in the alternative, rejecting that verdict and awarding plaintiffs damages that are greater than the verdict of the advisory jury, awarding plaintiffs past and future medical expenses which the advisory jury were not asked to consider in the verdict questionnaire and, finally, awarding interest on the total verdict calculated from the December 8, 2014 liability decision of the Honorable David B. Krogmann, J.S.C., to whom this matter was previously assigned. Defendant has simultaneously submitted a corollary motion to partially reject and modify the advisory verdict.
Neither party sought to have the issues decided by a jury.
Late in the evening of June 26, 2006, plaintiff Diane McDonald (hereinafter plaintiff) was driving home on County Route 19 (a/k/a Olmstedville Road) from her job as a banquet server at The Sagamore Hotel in Bolton Landing when the roadway suddenly washed out from beneath her vehicle. The car plunged into a brook, landed on the driver's side and started to fill with water. Plaintiff testified that she climbed out the passenger side, which was facing up, and was helped to safety by a passerby. She then observed her car roll onto its top and become fully submerged in the rushing water. Plaintiff suffered physical injuries together with the emotional injury of post-traumatic stress syndrome, the symptoms of which she described as occurring shortly after the accident. This protracted action was commenced on September 21, 2007.
The liability portion of this action was tried before Justice Krogmann, without a jury, on October 11, 12 and 13, 2011. Thereafter, on December 8, 2014, Justice Krogmann found defendant liable for the damages, if any, that plaintiff and her husband—plaintiff Steven Colletti—sustained as a result of the washout of the Olmstedville Road.
In the present damages trial the advisory jury was first asked whether the washout of the Olmstedville Road was a substantial factor in causing injuries to plaintiffs. The advisory jury found that it was a substantial factor and this Court concurs with that conclusion.
The advisory jury was next asked to assess the past damages for all pain and suffering to plaintiff and, in so doing, awarded plaintiff $300,000.00. Contrary to the advisory jury's conclusion, this Court finds that such past damages are more appropriately $200,000.00.
The advisory jury was then asked to assess the future damages for all pain and suffering to plaintiff. In this regard, the advisory jury awarded $100,000.00. Again, contrary to the advisory jury's conclusion, this Court finds that such future damages are more appropriately $50,000.00.
This Court's assessment of past and future pain and suffering awards are more reasonably reflective of the persuasive expert testimony detailing with exceptional particularization the failure of plaintiff to mitigate her damages, thereby depriving herself of a more favorable outcome. It is clear "that a party who claims to have suffered damage by the tort of another is bound ‘to use reasonable and proper efforts to make the damage as small as practicable,’ and if an injured party allows the damages to be unnecessarily enhanced, the incurred loss justly falls upon him" (Williams v. Bright, 230 A.D.2d 548, 550 [1997], quoting Blate v.. Third Ave. R.R. Co., 44 App.Div. 163, 167 [1899] ; see New York Tel. Co. v. Harrison & Burrowes Bridge Contrs., 3 AD3d 606, 610 [2004] ).
The advisory jury was next asked to assess the past damages to Colletti on his derivative claim for loss of services and society. The advisory jury awarded him $100,000.00. This award is reduced to $50,000.00, which the Court deems more appropriate under the circumstances.
Finally, the advisory jury was asked to assess the future damages to Colletti and found that he was entitled to "none." The Court concurs with this finding.
In addition to the foregoing, the Court finds that plaintiffs are entitled to recover their past out-of-pocket medical expenses. Following the verdict both counsel were instructed to rely upon the actual costs set forth in the Bill of Particulars dated June 6, 2016 to supply this amount and, if necessary, to request a collateral source hearing on such amount. Counsel are directed to jointly agree to this amount as it remains unknown to the Court, but this is a reasonable element of damages and shall be awarded. Insofar as future medical expenses are concerned the testimonial evidence of the defendant's psychological expert warrants a finding of such damages in the amount of $12,480.00, which represents the reasonable cost of a safely aggressive regimen and level of care which the plaintiff has thus far not pursued.
Insofar as interest on the judgment is concerned, the language of General Municipal Law § 3–a (1) that interest "shall not exceed" 9% per annum establishes not a fixed rate but, rather, a maximum rate. This Court can, on a proper application such as this, exercise its own discretion to set the appropriate level of interest. The Court of Appeals has held that the 9% rate is "presumptively fair and reasonable" (Denio v. State of New York, 7 NY3d at 166 ; Rodriguez v. New York City Hous. Auth., 91 N.Y.2d at 81 ). To rebut this presumption, defendant "bears the burden of proffering substantial evidence that rates of return on both public and private investments during the relevant period are below nine percent" (Denio v. State of New York, 7 NY3d at 168 ). Defendants have succeeded in meeting this burden.
"[A]ppellate courts addressing ‘shall not exceed’ interest rate statutes have uniformly held that trial judges should examine ‘all reasonable investment possibilities during the relevant time period,’ including both private and public securities, in determining whether to apply a rate less than the ceiling rate" (Denio v. State of New York, 7 NY3d at 167, quoting Auer v. State of New York, 283 A.D.2d 122, 126 [2001] ; see Abiele Contr. v. New York City School Constr. Auth., 6 AD3d 366, 367 [2004] ; Matter of New York State Urban Dev. Corp. [Alphonse Hotel Corp.], 293 A.D.2d 354, 355 [2002] ). In examining these possibilities here, the Court finds that an interest rate of 4% should apply to the total of the sums awarded with interest calculated from the date liability was established, to wit December 8, 2014.
This interest rate was adopted based upon economic data maintained by the Federal Reserve Bank of St. Louis (see 10–Year Treasury Constant Maturity Minus 2–Year Treasury Constant Maturity, https://fred.stlouisfed.org/series.T10Y2Y [accessed January 30, 2017] ).
Any relief not specifically granted is denied and any pending motions are hereby resolved in a manner consistent with the foregoing.
Based upon the foregoing it is hereby,
ORDERED that Judgment shall be entered in accordance herewith.
The original of this Decision and Order and all moving papers have been filed by the Court. Counsel for plaintiffs is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon the defendant in accordance with CPLR 5513.
Papers Reviewed:
1. Notice of Motion dated January 19, 2017 on behalf of plaintiffs;
2. Affirmation of John K. Powers, Esq., dated January 19, 2017;
3. Notice of Motion dated January 20, 2017 on behalf of defendant;
4. Affirmation of Asish A. Nelluvely, Esq., dated January 20, 2017 together with Exhibits "A" through "C".
5. Affirmation in Opposition of Asish A. Nelluvely, Esq. dated January 27, 2017;
6. Affirmation in Opposition of John K. Powers, Esq. dated January 27, 2017.