Opinion
1359 Index No. 24647/13 Case No. 2023-00743
01-09-2024
Saikou SINERA, Plaintiff–Appellant, v. EMBASSY HOUSE EAT LLC, et al., Defendants–Respondents.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant. Kahana Feld, LLP, New York (Sean Harriton of counsel), for respondents.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.
Kahana Feld, LLP, New York (Sean Harriton of counsel), for respondents.
Webber, J.P., Gesmer, Kennedy, Rosado, Michael, JJ.
Order, Supreme Court, Bronx County (Leticia M. Ramirez, J.), entered January 19, 2023, which, to the extent appealed from as limited by the briefs, granted defendants’ motion to set aside a jury verdict awarding plaintiff $1,000,000 for past pain and suffering, $2,000,000 for future pain and suffering, and $2,500,000 for future medical expenses, and directed a new trial unless plaintiff stipulated to reduce the award for past pain and suffering to $250,000, future pain and suffering to $450,000, and future medical expenses to $10,000, unanimously affirmed, without costs.
The court providently exercised its discretion in determining that the jury's award of damages deviated materially from what would be reasonable compensation (see Donlon v. City of New York, 284 A.D.2d 13, 14, 727 N.Y.S.2d 94 [1st Dept. 2001] ). Following a fall from a ladder while working at a construction site, plaintiff suffered impingement of the shoulder and a fractured wrist, for which he was treated with casts and received six months of therapy, as well as impingement of the shoulder. The jury's award reflected a finding that, in addition to the wrist fracture and shoulder impingement, plaintiff sustained complex regional pain syndrome (CRPS). However, such a finding was against the weight of the medical evidence (see Cahill v. Triborough Bridge & Tunnel Auth., 31 A.D.3d 347, 349–350, 819 N.Y.S.2d 732 [1st Dept. 2006] ; Annunziata v. Colasanti, 126 A.D.2d 75, 80, 512 N.Y.S.2d 381 [1st Dept. 1987] ). Four of plaintiff's doctors and four defense experts found no evidence of CRPS, and explained their findings based on the medical history and their respective examinations of plaintiff. The two witnesses who did testify that plaintiff had CRPS were plaintiff's physiatrist, Dr. Ali Guy, whose evaluations were inconsistent with his opinion; and Dr. Timothy Groth, who admitted to belatedly inserting a CRPS diagnosis in an undated addendum after a conversation with an unidentified person.
The trial court providently exercised its discretion in setting aside the awards for past and future pain and suffering unless plaintiff stipulated to a reduction as indicated, and the reduced damages are reasonable for the injuries sustained by plaintiff (see Garcia v. Spira, 273 A.D.2d 57, 709 N.Y.S.2d 53 [1st Dept. 2000] ; see also Lantigua v. 700 W. 178th St. Assoc., LLC, 27 A.D.3d 266, 267, 811 N.Y.S.2d 364 [1st Dept. 2006] ; Cabezas v. City of New York, 303 A.D.2d 307, 308, 756 N.Y.S.2d 566 [1st Dept. 2003] ). The jury's award for future medical expenses was based on unreliable and speculative evidence, while the reduced award is supported with reasonable certainty by evidence in the record (see Rivera v. City of New York, 293 A.D.2d 383, 741 N.Y.S.2d 30 [1st Dept. 2002] ; Lopez v. City of New York, 192 A.D.3d 634, 641, 146 N.Y.S.3d 81 [1st Dept. 2021] ).
We have considered plaintiff's remaining arguments and find them unavailing.