Opinion
300026/18
08-13-2019
Noldalia PEREZ, Plaintiff(s), v. WESTERN BEEF SUPERMARKETS, INC., Defendant(s).
Counsel for Plaintiff: John A. Corring Counsel for Defendant: Mirman, Markovitz & Landau, PC
Counsel for Plaintiff: John A. Corring
Counsel for Defendant: Mirman, Markovitz & Landau, PC
Fidel E. Gomez, J.
In this action for personal injuries sustained by plaintiff as a result of a fall within defendant's premises, defendant moves seeking an order pursuant to CPLR § 4404(a), setting aside a portion of the jury verdict reached against it. Specifically, defendant seeks to set aside the jury's verdict for future medical expenses on grounds that the record at trial was bereft of any competent evidence supporting the same. Plaintiff opposes the instant motion asserting that plaintiff's expert Physical Therapist provided testimony amply supporting the jury's verdict with respect to the foregoing award.
For the reasons that follow hereinafter, defendant's motion is denied.
The instant action is for personal injuries arising from a slip and fall within the premises owned and maintained by defendant. The complaint alleges that on May 24, 2015, plaintiff was injured within the premises located at 2044 Webster Avenue, Bronx, NY. It is alleged that defendant owned and maintained the premises and that plaintiff's injuries arose from defendant's negligence in the ownership and maintenance of the premises.
On March 28, 2019, after a four-day jury trial, the jury returned a verdict in favor of plaintiff. Specifically, the jury heard from defendant's Assistant Manager Antonio Soto, plaintiff, Vincent Vasile (Vasile) - a Physical Therapist, Nikolas Caputo - a doctor, and Marc Katzman - a doctor. Thereafter, the jury, upon finding defendant liable for the accident and injuries alleged, awarded $50,000 for past pain and suffering, $10,000 for future pain and suffering over the course of 25.6 years, $5,000 for past medical expenses and $35,000 for future medical expenses.
As relevant here, and as framed by the parties' papers, Vasile, as per the relevant portion of the trial transcript, testified as follows: On March 22, 2019, the date Vasile testified at the instant trial, he was a licensed Physical Therapist in the State of New York. At that time he had been practicing for 44 years. Vasile was qualified as an expert in the field of physical therapy and without objection , was allowed to provide testimony regarding plaintiff's treatment, that of patients in general, the evaluation of patients, the creation of therapy plans, and assessment of a patient's prognosis. Vasile testified that physical therapy is the treatment of "disease, injury, [and] deformity by means of physical methods such as therapeutic exercises, electrical modalities, heat and cold." The practice of physical therapy involves evaluating a patient referred to a Physical Therapist by a physician and devising and implementing a plan of treatment, making sure the same is followed and reevaluating the patient and modifying the plan as appropriate. At the time of plaintiff's accident and on the date Vasile testified, he was employed and in practice with New York Medical Rehabilitation. His duties entailed the supervision of other Physical Therapists, the formulation of a patient's therapy plan, and the implementation of such plan. Vasile was asked by plaintiff's counsel and agreed to only offer opinions which he could offer to "a reasonable degree of certainty as a physical therapy professional."
Notably, defense counsel initially objected to plaintiff's counsel's attempt to qualify Vasile as an expert in anything beyond physical therapy, objecting to an attempt to qualify Vasile as an expert in "diagnostic therapeutic treatment, prognosis, mechanical physiological impairments, functional limitations and disabilities." However, when the Court sustained an objection to such qualification, limiting Vasile's expertise to that to which he testified, namely the evaluation of patients, the creation and implementation of a course of therapeutic treatment, and in some cases assessing a patient's prognosis, when asked whether defense counsel objected, he responded "[n]o, not at all, Judge, thank you."
With respect to plaintiff, upon a review of records in evidence, specifically plaintiff's MRI reports and her records from New York Medical Rehabilitation, Vasile testified that plaintiff first treated at the foregoing facility on May 24, 2015. Although he did not treat plaintiff, Vasile's employee, Leah Manus, did. Plaintiff presented with injuries to her neck, low back, knees and ankles. Plaintiff was examined and she expressed pain in her neck and lower back. She also expressed pain in her knees and her range of motion in her knees was limited. Upon taking a history, plaintiff indicated that she had limitations performing certain activities, such as grooming, ascending and descending stairs, and performing housework. Vasile described plaintiff's MRI reports, noting that she had, inter alia , disc herniations at C6-C7, L3-L4, and L5-S1. Vasile testified that the foregoing injuries were caused by plaintiff's accident on May 24, 2015, when she slipped and fell within defendant's supermarket. He further opined that such injuries caused plaintiff pain and physically limited her. Based on the foregoing injuries, plaintiff treated at Vasile's facility, where she "received therapeutic exercise ... electrical modalities and heat treatment." With respect to future medical treatment, Vasile testified that plaintiff would "need further physical therapy... [specifically,] electrical stimulation, some directed physical exercises and application of heat." When asked to financially quantify the cost of future treatment and the extent and length of it, Vasile stated that "[s]he would require monthly course of physical therapy for a very long time. So the expense would be over the course of a year probably $5,000 [sic]."
Based on the foregoing, defendant's motion to set aside the portion of the jury's verdict, which awarded plaintiff $35,000 in future medical expenses is denied. Significantly, the record at trial, particularly Vasile's testimony, which the jury credited, amply supports the jury's verdict on this issue.
CPLR § 4404(a) reads:
[a]fter a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence, in the interest of justice or where the jury cannot agree after being kept together for as long as is deemed reasonable by the court.
Setting aside a jury verdict is within the sound discretion of the trial court and the exercise of such discretion must be accorded great respect ( Nicastro v. Park , 113 AD2d 129, 136 [2d Dept 1985] ). It involves an application of professional judgment gleaned from "the judge's background and experience as a student, practitioner and judge" ( id. at 135 ). Respect for the trial court's discretion in setting aside a verdict, or in the alternative, choosing not to, is mandated because the trial court is in the best position to "properly assess the evidence presented at trial, but also because judicial independence of mind in making that determination is an essential ‘ingredient to the sound health of the judicial process’ " ( id. at 137, quoting , Mann v. Hunt , 283 AD 140, 141 [3d Dept 1953] ).
Whether a verdict is against the weight of the evidence requires a determination of whether questions of fact were correctly resolved by the trier of fact ( Cohen v. Hallmark Cards, Inc. , 45 NY2d 493, 498 [1978] ). "[S]ince [the court] does not have the power to make new findings of fact in a jury case," if the verdict is against the weight of the evidence, the remedy is a new trial ( id. at 498 ). Significantly, a jury verdict shall not be set aside and shall stand unless and until the court concludes that the jury could not have reached the verdict on any fair interpretation of the evidence proffered at trial ( Delgado v. Board of Education of Union Free School District , 48 NY2d 643, 644 [1979] ). Stated differently, a jury verdict should not be set aside unless the court concludes that the evidence presented at trial so preponderates in favor of the moving party that the jury could not have reached its verdict on any fair interpretation of the evidence ( Grassi v. Ulrich , 87 NY2d 954, 956 [1996] ).
In reviewing an application to set aside a jury verdict, the court should be mindful that absent indications that substantial justice has not been done, the successful litigant at trial is entitled to the benefits of a favorable jury verdict ( Cholewinski v. Wisnicki , 21 AD3d 791, 791 [1st Dept 2005] ; Rivera v. 4064 Realty Co. , 17 AD3d 201, 203 [1st Dept 2005] ; McDermott v. Coffee Beanery, Ltd. , 9 AD3d 195, 206 [1st Dept 2004] ). Moreover, the court should always be guided by the principle that fact finding at trial is the province of the jury and not the trial court (Nicastro at 133), and that, as such, conflicts in the testimony and evidence adduced at trial are solely within the jury's province to resolve (Rivera at 203 ["While there were conflicts in testimony over the identity of the window guard installer and discrepancies between trial and pretrial testimony, those conflicts and discrepancies were resolved, and properly so, by the jury. In the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict. A trial court may not interfere with the fact-finding function of a jury simply because it disagrees with the verdict or would have evaluated credibility in a different manner."]; Niewieroski v. Natl. Cleaning Contractors , 126 AD2d 424, 425 [1st Dept 1987] ["Thus, this dispute as to the proof was for the jury to resolve in assessing all of the evidence as well as the credibility of the witnesses."] ). This is particularly true when the case hinges on conflicting expert testimony (McDermott at 206-207; Fontana v. Kurian , 214 AD2d 832, 833 [3d Dept 1995] ; see Gerdik v. Van Ess , 5 AD3d 726, 727 [2d Dept 2004] ; Lichtenstein v. Bauer , 203 AD2d 89, 89 [1st Dept 1994] ). Lastly, a trial court should always appreciate the fact that it may not interfere with the jury's fact finding process merely because it disagrees with the jury's findings or would have reached a different conclusion based on the credibility of the evidence and witnesses before the jury (Cholewinski at 191; Rivera at 203).
Instead, and again, the court's role is limited to determining whether the jury verdict is palpably wrong and could not have been reached upon any fair interpretation of the evidence (Rivera at 203; Cholewinski at 191). To do otherwise and disturb a jury verdict upon the court's mere disagreement with the verdict is tantamount to "usurpation of the jury's duty" (McDermott at 206 [internal quotation marks omitted]; Pena v. New York City Tr. Auth. , 185 AD2d 794, 795 [1st Dept 1992]. Thus, before the court can conclude whether a particular verdict is against the weight of the evidence, it must review the evidence adduced at trial, interpret the same fairly, and determine whether a fair interpretation supports the verdict rendered by the jury. If the court finds that a fair interpretation of the evidence supports the jury verdict it should not set the verdict aside (Rivera at 203).
Here, Vasile, who supervised plaintiff's treatment by his employee at New York Medical Rehabilitation, testified, to a degree of physical therapy certainty, upon his review of plaintiff's treatment records, that "[s]he would require monthly course of physical therapy for a very long time. So the expense would be over the course of a year probably $5,000 [sic]." Accordingly, since a jury verdict shall not be set aside and shall stand unless and until the court concludes that the jury could not have reached the verdict on any fair interpretation of the evidence proffered at trial (Delgado at 644) or unless the court concludes that the evidence presented at trial so preponderates in favor of the moving party that the jury could not have reached its verdict on any fair interpretation of the evidence (Grassi at 956), the record here supports the jury's finding. It is obvious that here, the jury credited Vasile's testimony and made an award based on the same. In fact, based on Vasile's testimony and the plaintiff's life expectancy, as ascribed to her by the jury, plaintiff could have been awarded $128,000 for future medical expenses ($5,000 multiplied by 25.6 years); such figure sustainable on this record.
Indeed, here, insofar as it is well settled that expert testimony must be based on facts in the record or personally known to the witness, and that an expert cannot reach a conclusion by assuming material facts not supported by record evidence ( Cassano v. Hagstrom , 5 NY2d 643, 646 [1959] ; Gomez v. New York City Hous. Auth. , 217 AD2d 110, 117 [1995] ; Matter of Aetna Cas. & Sur. Co. v. Barile , 86 AD2d 362, 364-365 [1982] ), Vasile's testimony, insofar as it is based on his observations and the medical records in evidence at trial, was sound and properly considered and weighed by the jury. Moreover, insofar as the proponent of future medical records is required to establish the cost of such treatment and its necessity by a fair preponderance of the evidence ( Kavanaugh v. Nussbaum , 129 AD2d 559, 563 [2d Dept 1987] ["We conclude, however, that the trial court properly set aside the award of $600,000 for future institutional custodial care. Although the plaintiffs proffered testimony regarding the cost of such care, they simply failed to establish, by a preponderance of the credible evidence, the necessity of such care for the infant plaintiff."], affd as mod sub nom ., Kavanaugh by Gonzales v. Nussbaum, 71 NY2d 535 [1988] ; see Pouso v. City of New York , 22 AD3d 395, 397 [1st Dept 2005] ["However, the award of $60,000 for future medical expenses was properly set aside as speculative and unproven with reasonable certainty."]; Hernandez v. New York City Tr. Auth. , 52 AD3d 367, 369 [1st Dept 2008] ["The award of $3,042,949 for a home health aide for the next 24 years was speculative and unproven with reasonable certainty."]; Firmes v. Chase Manhattan Automotive Fin. Corp. , 50 AD3d 18, 29 [2d Dept 2008] ; Reed v. Harter Chair Corp. , 185 AD2d 547, 549 [3d Dept 1992] ), here, Vasile's testimony quantifies both the cost and duration of the future medical expenses awarded by the jury as well as its necessity.
Contrary to the assertion by defense counsel, the record is bereft of any evidence supporting his claim that he objected to the portion of Vasile's testimony regarding future medical expenses. Accordingly, defendant's motion is denied. It is hereby
ORDERED that plaintiff serve a copy of this Order with Notice of Entry on defendant within thirty (30) days hereof.
This constitutes this Court's decision and Order.