Berhe v New York City Tr. Auth.

[*1] Berhe v New York City Tr. Auth. 2005 NY Slip Op 50309(U) Decided on February 7, 2005 Supreme Court, New York County Shulman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 7, 2005
Supreme Court, New York County

Elsa Berhe and ELIZABETH MOORE, Plaintiffs,

against

New York City Transit Authority, METROPOLITAN TRANSIT AUTHORITY, MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, DOREEN Y. BRADLEY, and CRAIG LITTLE, Defendants.



107853/02

Martin Shulman, J.

Plaintiff, Elsa Berhe ("plaintiff or "Berhe"), moves for additur in relation to a jury verdict rendered on December 18, 2003 [FN1]. Defendants, New York City Transit Authority, Metropolitan Transit Authority, Manhattan and Bronx Surface Transit Operating Authority, Doreen Y. Bradley, and Craig Little, (collectively "defendants" or "MABSTOA") oppose the motion and [cross-]move for a collateral source hearing.

On December 26, 2001, Berhe and Elizabeth Moore [FN2] were injured when the MABSTOA bus they were passengers on rear-ended another MABSTOA bus. After an earlier round of motion practice, plaintiff was granted partial summary judgment on the [*2]issue of negligence and the case proceeded as a damages-only trial before a jury.

The Jury Verdict Sheet (Exhibit A to motion) preliminarily reported that defendants' negligence in causing the two-bus collision was a substantial factor in causing Berhe's injuries. The Jury Verdict Sheet further reported that as a result of this accident, plaintiff suffered a serious injury under the No-Fault Law, Insurance Law §5102(d), viz., Berhe sustained "a significant limitation of use of body function and system" (see Jury Question 2[B]) as well as "a medically determined injury or impairment of a non-permanent nature that prevented her from performing substantially all of the material acts that constituted her usual and customary daily activities for not less than ninety days during the one hundred and eighty days immediately following the accident." (see Jury Question 2[C]).

With these jury-determined conclusions of fact in mind, plaintiff was awarded damages in the amount of $60,000 for past pain and suffering, $15,000 for future pain and suffering for one year, $19,245.70 for past medical expenses, $12,000 for future therapeutic expenses, $14,881.10 for past lost earnings and $30,000 for future lost earnings for one year. These varied awards total $151,126.80.

Plaintiff's motion seeks an order to set aside the jury's damage award as against the weight of the evidence (CPLR §4404[a]) and/or as inadequate and deviating materially from what would be reasonable compensation (CPLR §5501[c]), and to direct a new trial unless defendants stipulate to pay a higher award set by the court, i.e., additur.

It is clear from their opposition papers that defendants do not challenge this verdict. Nonetheless, defendants [cross-]move pursuant to CPLR §4545(c) for an order reducing the money judgment to be entered by the amount of monies plaintiff received from collateral sources for her economic losses resulting from this accident to be determined at a hearing.

Plaintiff's counsel opposes this [cross-]motion as being untimely and meritless because defendants waived their right to a collateral source hearing. Without devoting too much discussion here, this Court finds that this [cross-]motion was timely made and that defendants' counsel made this same application on the record after the jury was discharged (see Trial Transcript ["Tr."], at pp. 653-654). Based upon plaintiff's undisputed trial testimony that she received certain payments from collateral sources for economic losses (Tr. at pp. 163-165), defendants' [cross-]motion is granted.

MABSTOA, inter alia, seriously disputes the severity of plaintiff's injuries resulting from an accident characterized as a low impact rear-end collision [FN3]. On the other hand, plaintiff maintains that as a result of this accident she seriously injured her left shoulder, neck and left knee when she was thrown from her seat to the floor of the bus and has become permanently disabled; suffering injuries which markedly affected the quality of her life. [*3]

At trial, Berhe testified that prior to the December 26, 2001 accident (the "Accident:") and at thirty-three (33) years of age, she enjoyed good health. Her shoulder, neck, back and knees all functioned normally and she experienced no pain or limited ranges of motion in performing her work-related and familial responsibilities. Plaintiff testified that during the ensuing two year period between the Accident and trial, she was forced to undergo two arthroscopic surgeries on her left knee, over one hundred fifty physical therapy sessions and over one hundred psychological counseling sessions for treatment of her post- traumatic stress disorder ("PTSD"), and that she must continue to seek such therapeutic treatments for the foreseeable future. She also testified that since the Accident she has been unable to return to work as a hotel maid because of constant, debilitating pain and limited ranges of motion of her left knee and shoulder.

The trial transcript [FN4] further established that within a week after the Accident, Joyce Goldenberg, M.D., board certified in physical medicine and rehabilitation, began treating plaintiff and prescribed varied therapeutic modalities such as physical therapy, message therapy, ultrasound, electrical stimulation, acupuncture, chiropractic treatment, as well as medication such as muscle relaxants and anti-inflammatory drugs. (Tr. at p. 172) Dr. Goldenberg also ordered a battery of MRI studies which, inter alia, revealed that Berhe suffered a tear of the medial meniscus and anterior cruciate ligament ("ACL") in her left knee, a tear of the glenoid labrum or cartilage of her left shoulder, two cervical disc bulges and left knee joint effusion (presence of fluid). (Tr. at pp. 176-177) Berhe also underwent certain EMG studies which revealed positive findings. As a result of these diagnostic tests and clinical findings of weakness, pain, inflammation, decreased movement and diminished weight bearing capacity of Berhe's left knee, Dr. Goldenberg referred plaintiff to Dr. Steven Touliopoulos, a board certified orthopedic surgeon in February, 2002. Even after two arthroscopic surgeries, Dr. Goldenberg continues to treat plaintiff, to date.

Dr. Touliopoulos performed the first arthroscopic surgery on plaintiff's left knee on March 15, 2002 after obtaining positive results from the Anterior Drawer, Pivot Shift and Lachman tests. These tests are performed to assess the integrity and function of the ACL. Utilizing arthroscopy and related techniques, Dr. Touliopoulos diagnosed a complex tear of the medial meniscus, a looseness of the ACL as well as torn ACL fibers and chondromalacia in the back of the patella (softening of the cartilage in the knee cap through trauma or degeneration). This treating surgeon then performed a meniscectomy to remove this torn knee cartilage and used a heat probe to tighten the ACL and avoid performing an ACL reconstruction. (Tr. at pp. 324-326) Thereafter, Dr. Touliopoulos fitted Berhe with a knee brace, directed her use of a cane and prescribed a course of physical therapy.

Plaintiff seemed to have improved after surgery but then experienced recurring symptoms of pain, weakness and joint effusion. Dr. Touliopoulos ordered another MRI which revealed a disruption of the ACL. On July 19, 2002, he performed a second [*4]operation on her left knee. After performing an arthroscopy to visualize the condition of the knee structure, the treating surgeon completed an ACL reconstruction and removed scar tissue around the patella tendon. (Tr. at pp. 329-333) Thereafter, plaintiff utilized crutches and then a cane to ambulate and pursued a course of therapy through the end of 2002. Dr. Touliopoulos continued to conduct period examinations during the ensuing period and his examination shortly before trial in December, 2003 revealed that Berhe continued to experience pain in her left knee. Although Dr. Touliopoulos clinically determined Berhe's left knee was not unstable; still, he did observe some atrophy and loss of tone to plaintiff's left thigh muscles and some minor abnormal range of motion of her left knee. (Tr. at p. 338) Despite the successful surgeries, the treating surgeon determined that her left knee will never function normally, that is to say, Berhe will continue to suffer a permanent disability and would develop arthritis. (Tr. at p. 339-340) Moreover, even MABSTOA's expert concurred that Berhe suffered a moderate disability in her left knee foreclosing her from carrying out physical movements (e.g., bending, lifting, moving heavy objects, climbing stairs, etc.) so necessary to properly perform the cleaning tasks of a hotel maid. (Tr. at pp. 466-467)

When plaintiff presented complaining of left shoulder pain and weakness on December 2, 2003, Dr. Touliopoulos reviewed certain MRI studies and conducted an examination of plaintiff's left shoulder including the performance of Apprehension and Relocation tests to assess shoulder/arm stability. The treating surgeon reported positive clinical findings of instability and limited ranges of motion. As to plaintiff's prognosis, Dr. Touliopoulos concluded that physical therapy would be of limited value and recommended arthroscopic surgery at a cost of $15,000 to achieve a meaningful result. However, Berhe is reluctant to have this operation. According to Dr. Touliopoulos, plaintiff's knee and shoulder injuries are permanent and preclude Berhe from ever returning to work as a hotel maid. (Tr. at pp. 342-348)

As noted earlier, plaintiff began seeing Dr. Joseph Hammer, a licensed clinical psychologist, shortly after the accident and presented with a symptom cluster indicative of PTSD. Dr. Hammer opined that because of her recurrent and intrusive distressing recollection of the Accident, her panic attacks, her interaction with her treating physicians and lawyers, her surgeries, her inability to work and function normally as a wife and mother, Berhe experienced, and continues to experience, anxiety and depression. After conducting approximately one hundred sessions with plaintiff since January 2002, Dr. Hammer offered a prognosis viewing her PTSD as guarded and that plaintiff should continue to see him for at least another year. (Tr. at pp. 399-426)

Against the backdrop of her treating physicians' opinions at trial as to her purported permanent disabilities, plaintiff does not challenge the jury award for past and future medical expenses (see, Exhibit A; Jury Questions 4[A] and 4[B]), but challenges the jury's awards for past and future pain and suffering and past and future lost earnings as being unreasonable and against the weight of the evidence.

Particularly, plaintiff's counsel argues that the jury inexplicably made an inadequate award for future pain and suffering of "only $15,000 over a one year life expectancy...[and an inadequate award of] only $30,000 for her one year work expectancy." (Lefkowitz Aff. in support of motion at ¶22). Counsel concedes that the jury was not bound to accept plaintiff's suggested life expectancy figure of 45.7 years as [*5]well as plaintiff's suggested work life expectancy figure of 26 years in calculating awards for future pain and suffering and a future loss of earnings. However, there was no factual basis, counsel argues, for the jury to conclude that plaintiff' life/work life expectancy would be limited to only one year. In addition, counsel argues that these awards deviate materially from comparable awards reported for similarly situated plaintiffs.

In discussing the reasonableness of the jury verdict, MABSTOA found it significant that the jury did not find that Berhe suffered a "permanent consequential limitation of use of a body organ or member." (see Exhibit A to plaintiff's motion; Jury Question 2[A]). And because the jury found plaintiff's injuries to be of a non-permanent nature, MABSTOA further contends the jury reasonably awarded her only one more year of future damages. As noted below, counsel argued that the jury verdict, inter alia, reflects proper consideration of the treating physicians' respective testimony elicited on cross-examination, its expert witnesses' testimony as well as the medical records in evidence:

After the Accident, plaintiff was taken by ambulance to Columbia Presbyterian Hospital. The emergency room chart in evidence does not record any observed swelling or discoloration of her left knee within three hours after the Accident (Tr. at p. 236) and Berhe was released without a neck or knee brace;

The MRI studies reveal pre-existing and age-related, degenerative conditions, unrelated to the Accident (Tr. at pp.223-224) as well as suspected conditions in her left knee not found after arthroscopic examination (Tr. at p.319 and 324-326);

Treating physicians' progress reports recorded that out of the one hundred and thirty physical therapy sessions, Berhe only complained about her left shoulder fourteen times (Tr. at p. 257) and, tellingly, during three visits to Dr. Goldenberg during the period May to October 2003, plaintiff made no shoulder complaints. (Tr. at p. 258) And during her treatment with Dr. Touliopoulos, Berhe made shoulder complaints only twice at the initial visit and during the December 3, 2003 examination the treating surgeon conducted before the December 9, 2003 trial date (Tr. at p. 383);

Reports from Joint Efforts, a physical therapy clinic, further record post-surgery findings during the intervening period prior to trial where plaintiff walked without a limp or an antalgic gait and such records neither reported any complaints concerning plaintiff's left shoulder nor prescribed any therapeutic modalities therefor (Tr. at pp. 365-366), and nerve conduction velocity studies contained in Dr. Goldenberg's treatment records of the bilateral extremities (arms and legs) as well as a neurologist's "independent" medical examination revealed normal findings (Tr. at pp. 239-250 and 523-531);

Dr. Touliopoulos' progress notes shortly after the second arthroscopic surgery reported plaintiff being satisfied with the stability and function of her left knee and using the cane intermittently (Tr. at pp. 366-367), that objective tests (i.e., Anterior Drawer, Pivot Shift and Lachman tests) performed on plaintiff's left knee in September and December [*6]2002 showed negative (normal) findings (Tr. at pp. 268-270) and that plaintiff's left knee had a good range of motion, albeit after the two surgeries (Tr. at p. 382);

Defendants' expert orthopedist's "independent" medical examination revealed a normal range of motion for the cervical spine without tenderness or muscle spasm, normal and symmetrical deep tendon reflexes in the upper extremities (arms and wrists), and a full range of motion of the left knee [FN5] (Tr. at pp. 462-464); and

The ACL tear may have occurred after the first arthroscopic surgery from causes unrelated to the Accident. (Tr. at pp. 357-365)

Finally, defendants claim the award of $30,000 for future loss of earnings for one year was reasonable: "[T]he jury went so far as to meticulously calculate the one year of future loss wages. . . She also testified that she earned a pre-accident salary of $2,400 per month. Therefore, her annual salary was $28,800. In analyzing that part of the jury award, they considered the time the verdict was rendered and compensated her for same. They awarded an additional $1,200 for half a month since the verdict was rendered on December 18, 2003." (see Kim Opp. Aff. at p. 6).

CPLR §5501(c) states, in relevant part:

In reviewing a money judgment in an action in which an itemized verdict is required in which it is contended that the award is . . . inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an award is . . . inadequate if it deviates materially from what would be reasonable compensation.

Trial courts may also apply this material deviation standard in overturning jury awards but should exercise its discretion sparingly in doing so. Shurgan v. Tedesco, 179 AD2d 805, 578 NYS2d 658 (2nd Dept., 1992); Prunty v. YMCA of Lockport, 206 AD2d 911, 616 NYS2d 117 (4th Dept., 1994); see also, Donlon v. City of New York, 284 AD2d 13, 727 NYS2d 94 (1st Dept., 2001) (implicitly approving the application of this standard at the trial level). For guidance, a trial court will typically turn to prior verdicts approved in similar cases, but must undertake this review and analysis with caution not to rigidly adhere to precedents (because fact patterns and injuries in cases are never identical) and/or substitute the court's judgment for that of the jurors whose primary function is to assess damages. Po Yee So v. Wing Tat Realty, Inc., 259 AD2d 373, 374, 687 NYS2d 99, 101 (1st Dept., 1999).

With this principles in mind, this Court has reviewed the cases respectively cited by the parties' counsel. It must be noted at the outset that the defendants rely on lower court cases involving procedural and substantive issues inapposite to the case at bar and which are of no value. On the other hand, plaintiffs proffer appellate precedents [*7]addressing knee and leg injuries which either affirm jury awards or modify jury awards far in excess of the $75,000 aggregate damages the underlying jury awarded Berhe for pain and suffering. Illustrative are the cases of Juliano v. Prudential Securities Incorporated, 287 AD2d 260, 731 NYS2d 142 (1st Dept., 2001) (modification to increase the jury award of $68,000 for pain and suffering to an aggregate sum of $200,000 for a medial meniscus tear of the right knee which required two arthroscopic surgeries); Gonzalez v. Manhattan and Bronx Surface Transit Operating Authority, 160 AD2d 420, 554 NYS2d 116 (1st Dept., 1990) (reduction of an aggregate pain and suffering award from $1.2 million to $600,000 for one arthroscopic procedure which repaired a torn meniscus and cartilage damage [FN6]); Frascarelli v. Port Authority of New York and New Jersey, 269 AD2d 422, 702 NYS2d 889 (2nd Dept., 2000)(trial court's grant of remittitur, inter alia, reducing the aggregate pain and suffering award to $450,000 further reduced to an aggregate sum of $375,000 [medial meniscal tear requiring surgery and evidence of leg muscle atrophy, restrictive physical movements and pain]); and Burton v. New York City Housing Authority, 191 AD2d 669, 595 NYS2d 807 (2nd Dept., 1993) (aggregate pain and suffering award reduced from $525,000 to $262,500 [plaintiff underwent reconstructive surgery for ruptured meniscus and related knee structure damage]).

After a careful review of the trial transcript and the foregoing personal injury case law, this Court finds that the jury awards for past and future pain and suffering deviate materially from what would be reasonable compensation and are inadequate. This Court grants plaintiff's motion for additur to increase the jury's aggregate pain and suffering award of $75,000 to $200,000 ($150,000 for past pain and suffering and $50,000 for future pain and suffering [FN7]) which constitutes reasonable compensation under these circumstances. Further, it was not consistent with the weight of the evidence for the jury to have awarded plaintiff $14,881.10 for plaintiff's past loss of earnings [FN8]. Rather, this damage award should have been calculated to be $28,800.

However, plaintiff misunderstood the import of the jury awarding future damages for only one year. The jury did not embrace the notion that Berhe had only one year to live, but rather relied on this Court's instruction re-read to them after the jury reported their verdict without fully completing Jury Questions 3(B) and 5(B). Briefly, the jury made awards for future pain and suffering and future lost earnings without recording [*8]the period of years for which those amounts were intended to provide plaintiff compensation. With respective counsel's consent and approval, this Court re-read the following instruction to the jury (Tr. at pp. 646-647):

Members of the jury, counsel has pointed out with respect to two questions you answered, future pain and suffering and future lost wages. If you recall the instructions and I'll read it again so we're clear, state separately the amount awarded for the following items fo damage. And I recited the different elements: medical expenses, lost earnings, rehabilitation, pain and suffering, including permanent effects of the injury from the time of the verdict to the time plaintiff can be expected to live. If you decide not to make an award as to either, you insert the word "none" as to this item. If decide to award any amount intended to compensate the plaintiff for damages incurred in the future then for each item an award is made state the period of years such amount is to be made for compensation. So, accordingly, counsel has pointed that you can't leave the years blank. So I'm going to ask you to go back into the room and determine the period of years that you wish the award to cover.

As noted earlier, plaintiff found the future medical expenses award to be fair and reasonable and ostensibly calculated to cover one year's worth of expenses for physical therapy and the services of a licensed psychologist.

Plaintiff also did not question the jury's decision not to award future surgical fees and related expenses for potential shoulder surgery. In this context, "[i]n considering the conflicting testimony of the parties' respective expert witnesses, the jury was not required to accept one expert's testimony over that of the other, but was entitled to accept or reject either expert's position in whole or in part. . ." Lyerly v. Madison Square Garden, 3 Misc 3d 128A, 2004 Slip Op 50363U, 2004 N.Y.Misc LEXIS 515 (A.T., 1st Dept.) citing to Mejia v. JMM Audubon, Inc., 1 AD3d 261, 767 NYS2d 427 (1st Dept., 2003). Here, the jury evidently considered neurological and nerve conduction velocity studies which objectively did not corroborate Dr. Goldenberg's opinion that plaintiff presently suffers from radiculitis in her cervical and lumbar spine [FN9]. (Tr. at p. 250) Parenthetically, the lumbar spine revealed no disc bulges or herniations. (Tr. at p. 251) The jury further recognized that an interpretation of an MRI may initially indicate a suspected condition that can be definitively ruled out after performing certain objective tests as well as an arthroscopic examination of the injured structure in question as was the case here (i.e., an MRI revealed a suspected partial thickness tear of the lateral collateral ligament of Berhe's left knee [Tr. at p. 319] which was found to be unsubstantiated after Dr. Touliopoulos completed certain tests and an arthroscopic examination in the operating room [Tr. at pp.324-326]).

Unlike her injured left knee, the progress notes from Berhe's treating physicians and physical therapy records in evidence reported neither chronic left shoulder complaints nor regular non-invasive treatments for such complaints from the Accident [*9]up to the date of trial. Without additional proof, the jury was free to reject an interpretative finding that plaintiff suffered a tear of the anterior lip of the glenoid labrum of her left shoulder.

As borne out by the trial record, the parties' respective experts jointly concur after clinical examinations that the two surgeries were successful in stabilizing Berhe's left knee. Moreover, the jury evidently rejected plaintiff's contention that she was unable to return to any type of work and accepted the defendants' expert orthopedist's contrary opinion that plaintiff should be fully capable of performing sedentary work. Parenthetically, plaintiff's treating psychologist was not able to definitively opine that Berhe's PTSD would be a life-long affliction and plaintiff will presumably need just another year of psychological treatment to overcome her PTSD [FN10]. Consistent with the weight of the evidence, the jury reasonably found that while Berhe suffered a significant limitation of use of her injured left knee. Nonetheless, at the time of trial, the jury did not find plaintiff suffered a permanent consequential limitation of use of her knee and their future damage award reflects their reasonable conclusion that plaintiff " substantially [albeit, not completely] recovered from the effects of the trauma by the time of trial. . ." Lyerly, supra . (Bracketed matter added) Accordingly, except for additur to increase the future pain and suffering award from $15,000 to $50,000 for one year, this Court otherwise finds that "[a] fair interpretation of the evidence supports the jury's [mutually consistent] award[s] for [future] lost earnings [and future medical expenses] . . ." (bracketed matter added) (Carlos v. W.H.P.19, LLC, 301 AD2d 423, 424, 752 NYS2d 874 (1st Dept., 2003), both of which are intended to compensate plaintiff for a one year period. This Court further finds such awards were consistent with the weight of the record evidence and did not deviate materially from what would be reasonable compensation.

For the foregoing reasons, this Court grants plaintiff's motion to set aside the jury verdict on damages for past lost earnings and past and future pain and suffering and grants a new trial only on these damage issues unless, within ten days after service of a copy of this decision and order with notice of entry, defendants execute a stipulation agreeing to increase the jury award for past loss of earnings from $14,881.10 to $28,800 and to increase the jury's aggregate award for pain and suffering from $75,000 to $200,000 ($150,000 for past pain and suffering and $50,000 for future pain and suffering).

Thereafter, the parties shall submit a proposed money judgment for signature consistent with this Court decision and order granting defendants' [cross-]motion reflecting the appropriate reduction for collateral source payments [FN11] Berhe received for [*10]her economic losses.

This constitutes the Decision and Order of this Court. Courtesy copies of same

have been provided to counsel for the parties.

DATED: New York, New York

February 7, 2005

___________________________

HON. MARTIN SHULMAN, J.S.C.

. Footnotes

Footnote 1: Normally, a motion to challenge a jury verdict pursuant to CPLR §4404(a) is governed by the 15-day time limit of CPLR §4405. This Court permitted the parties to stipulate to extend their time to present written arguments. See, "(CPLR 2004; see, 4 Weinstein-Korn-Miller, NY Civ Prac para. 4405.05)..." Brown v. Two Exchange Plaza Partners, 146 AD2d 129, 539 NYS2d 889 (1st Dept.,1989). In addition, this Court did not receive a complete copy of the trial transcript until November, 2004 and a post-trial settlement conference was scheduled one month later. After unsuccessful settlement discussions, the motion and [cross-]motion were deemed sub judice for disposition.

Footnote 2: After the first day of trial testimony, Ms. Moore entered into a settlement agreement in open court which was so ordered, and her claim against defendants was discontinued, with prejudice.

Footnote 3: For purposes of determining the severity of the collision, no accident report was offered into evidence. Nor did the MABSTOA driver of the contact bus, and a named co-defendant, ever appear to testify that he was, in fact, traveling 2 to 4 mph just prior to rear-ending the other MABSTOA bus.

Footnote 4: This decision and order will discuss the trial testimony of plaintiff's three treating physicians and medical experts utilizing a narrative format.

Footnote 5: On the January 20, 2003 date of the examination, the orthopedist did observe Berhe with a limp and some atrophy of her left leg's quadricep muscle which then suggested a moderate orthopedic instability which would not necessarily rule out plaintiff's capability of performing sedentary work. (Tr. at pp. 465-468)

Footnote 6: Even with the prospect of bilateral knee replacements, plaintiff Gonzalez still performed her daily activities and never lost any time from work.

Footnote 7: Cf., McNeil v. MCST Preferred Transportation Co., 301 AD2d 579, 753 NYS2d 866 (2nd Dept., 2003) ( trial court's grant of remittitur, inter alia, reducing the jury's future pain and suffering award from $40,000 for one year to $0 modified to increase such award to $15,000 for one year [plaintiff with a hairline right ankle fracture back at work full time after non-surgical treatments])

Footnote 8: In calculating her past loss of earnings, Berhe incontrovertibly testified that she earned $2400 a month (Tr. at p. 164) (see also 2001 W-2 earnings summary as plaintiff's Trial Exhibit 1) and had been unable to work since the Accident up to the date of the verdict. This totals $28,800.

Footnote 9: Significantly, the Appellate Division in each of the Departments has held that a bulging disc by itself is not a serious injury. Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345, 353, n 4, 746 NYS2d 865, 870, n 4 (2002)

Footnote 10: A substantial portion of Dr. Hammer's cross-examination focused on the alleged billing inaccuracies for certain patient visits that never occurred. While the discrepancies were explained away, the jury was free to draw appropriate inferences and separately question whether plaintiff's PTSD was totally related to the Accident.

Footnote 11: The record evidence revealed that plaintiff started receiving monthly disability payments of $1331 shortly after the Accident up to and including December 2004. The proposed judgment should include an appropriate supporting affidavit by a person with personal knowledge of the facts and supporting documentation, if necessary, setting forth the calculations obviating any need for a formal hearing.