Donovan v Tineo
Annotate this CaseDecided on July 7, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and BELEN, JJ
2005-812 K C.
Marguerita Donovan, Respondent,
against
Eduardo Tineo and EXDONOVAN PEAK, Appellants.
Appeal by defendants from a judgment of the Civil Court of the City of New York, Kings County (Donald S. Kurtz, J.), entered January 10, 2005. The judgment awarded plaintiff the principal sum of $487,000. The appeal from the judgment brings up for review the order dated May 7, 2004, which, inter alia, granted defendants' motion to set aside the jury verdict in the principal sum of $685,000 and directed a new trial limited to the issue of damages unless plaintiff stipulated to reduce the verdict to the sum of $487,000.
Judgment reversed without costs, order dated May 7, 2004 vacated except insofar as same related to defendants' motion for a collateral source hearing, defendants' motion to set aside the jury verdict granted and a new trial ordered limited to the issue of damages, unless within 30 days after service upon plaintiff of a copy of the order entered hereon, with notice of entry, plaintiff serves and files in the office of the Clerk of the Civil Court, Kings County, a written stipulation consenting to decrease the jury verdict as to damages from the principal sum of $685,000 to the principal sum of $415,000, representing $40,000 for past pain and suffering, $75,000 for past lost earnings, $240,000 for future pain and suffering, and $60,000 for future lost earnings, and to the entry of an amended judgment accordingly; in the event that plaintiff so stipulates, then the judgment, as so decreased and amended, is affirmed without costs.
On December 18, 1996, plaintiff was in an automobile accident. The defendants [*2]conceded liability and the trial proceeded on the issue of damages only. After trial, the jury returned a verdict in plaintiff's favor in the principal sum of $685,000. Pursuant to a motion by defendants to set aside the verdict, the court below granted defendants' motion and ordered a new trial limited to the issue of damages unless plaintiff stipulated to reduce the award for past pain and suffering from $70,000 to $40,000, the award for future pain and suffering from $360,000 to $240,000, and the award for future lost earnings from $180,000 to $132,000. Plaintiff so stipulated and judgment was subsequently entered in favor of plaintiff in the principal sum of $487,000.
In our opinion, the judgment should be reversed and a new trial ordered unless plaintiff enters into a written stipulation consenting to decrease the verdict as to damages from the principal sum of $685,000 to the principal sum of $415,000, representing $40,000 for past pain and suffering, $75,000 for past lost earnings, $240,000 for future pain and suffering, and $60,000 for future lost earnings, and to the entry of an amended judgment accordingly.
Plaintiff established that she sustained a serious injury pursuant to Insurance Law § 5102 (d), namely a significant limitation of a body organ, function or system. One of plaintiff's experts testified that he read the MRI films and determined that plaintiff suffered disc herniations at C3-C4, C4-C5 and C5-C6. He also found disc bulges at L2-L3, L3-L4 and L4-L5. He stated that her cervical spine is rapidly deteriorating and the cervical spinal cord is impinged. The doctor further testified that plaintiff has lost 60 percent of function in her neck area and she has pain when she turns her head. Plaintiff also has a 40 percent reduction of movement in her lumbar spine. The doctor concluded that the injuries were caused by the accident and are permanent, and he recommended surgery.
A jury verdict may only be set aside as being against the weight of the evidence when the jury could not have reached its verdict upon any fair interpretation of the evidence (see Payne v Rodriguez, 288 AD2d 280 [2001]). Here, the testimony by plaintiff's medical experts established a basis upon which the jury could have reasonably concluded that the plaintiff suffered a serious injury.
One of plaintiff's doctors testified that plaintiff had herniated discs. Under the circumstances, the court properly denied defendants' request for a missing witness charge as to three treating physicians since their testimony would have been cumulative.
It was not error for the court to grant plaintiff's motion for a missing witness charge as to the defendant driver because he could have testified as to the impact created by the collision. Nor was it error to permit plaintiff's attorney to read to the jury excerpts from the driver's examination before trial which bore on the force of the impact for the purpose of determining the nature or extent of the plaintiff's injuries. The missing witness charge regarding the owner did not prejudice defendants.
On May 7, 2004, the court, inter alia, denied defendants' motion for a collateral source hearing pursuant to CPLR 4545 (c) with leave to renew upon submission of proper papers within 15 days after service upon defendants' attorney of a copy of said order with notice of entry. By motion returnable July 30, 2004, the defendants renewed their motion. In opposition, plaintiff's attorney stated that he served a copy of the May 7, 2004 order with notice of entry upon defendants' attorney on May 26, 2004, which fact was not refuted by defendants' attorney. In view of the foregoing, we find no basis to disturb the order dated September 13, 2004 which denied defendants' renewed motion for a collateral source hearing as untimely (see Virkler v [*3]Shockney, 178 AD2d 966 [1991]). We note that the case of Wooten v State (302 AD2d 70 [2002]) is not to the contrary since in that case there was no direction from the court to submit the motion within a specified time period.
Finally, we would reduce the amount of future lost earnings from $132,000 to $60,000. The jury erroneously based its award of $180,000 over a 36-year period when, as plaintiff concedes, the appropriate period was 12 years. Accordingly, given the fact that the jury award with respect to future lost earnings averaged $5,000 per year, a figure we deem to be appropriate, given the financial condition of plaintiff's
employer as testified to by plaintiff, an award of $60,000 for the 12 years of future lost earnings is appropriate.
We find no merit to defendants' other contentions on appeal.
Pesce, P.J., Golia and Belen, JJ., concur.
Decision Date: July 7, 2006
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