Rios v City of New York

[*1] Rios v City of New York 2005 NY Slip Op 51423(U) [9 Misc 3d 1106(A)] Decided on July 11, 2005 Supreme Court, Bronx County Salerno, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 11, 2005
Supreme Court, Bronx County

Michelle Rios, Plaintiff,

against

THE City of New York, THE NEW YORK CITY POLICE DEPARTMENT and JOHN O. ANASA, Defendants.



15177/1996

George D. Salerno, J.

Defendants move pursuant to CPLR 4404(a) for various forms of relief addressed to the jury verdict that found defendants liable for plaintiff's injuries and awarded damages for both past and future pain and suffering including a separate award for future medical expenses.

The principle issue presented in this case, is whether the driver of a police vehicle, responding to a 911 dispatch call, operated his vehicle in reckless disregard for the safety of others. The Court of Appeals in Saarinen v. Kerr 84 NY2d 494, 644 NE2d 988, 620 NYS2d 297, reviewed the circumstances when the reckless disregard standard is applied for injuries arising from the operation of an emergency vehicle. Judge Tutone writing for a unanimous court in Saarinen, supra , observed that the "initial critical question is what standard should be applied when evaluating the culpability" of the driver of a police vehicle engaged in the chase of another vehicle being driven erratically. The court turned to language set forth in Vehicle and Traffic Law §1104 which permits the driver of an authorized emergency vehicle to disregard, traffic signs and regulations. [FN1] The standard, said the court in Saarinen, supra , "demands more than a showing of a lack, of 'due care under the circumstances' [p.501] which is the usual requirement associated with ordinary negligence. Manifestly, the evidence that is required to sustain a [*2]finding of reckless disregard is that the 'actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome' ( Prosser and Keaton, Torts §34, at 213, [5th ed]; and Reinstatement [Second] of Torts §500).

That branch of defendants' motion to set aside the jury's verdict as against the weight of evidence is denied. At the outset it should be noted that this case was submitted to the jury on the higher standard of reckless disregard (New York Vehicle and Traffic Law §§1104, 101, 114b).

The accident which prompted this action occurred on March 11, 1995. Plaintiff, at the trial testified that on the day of the accident she resided at 8160 Andrews Avenue in the Bronx and at that time driving her 1987 Chevrolet vehicle Southbound on Andrews Avenue with several children who were passengers in her vehicle. As plaintiff's vehicle approached the intersection of Andrews Avenue and 176th Street, a police vehicle driven by defendant Anasa collided with plaintiff's vehicle. Andrews Avenue is a one way street. According to the plaintiff, the police vehicle did not engage its siren nor was the emergency flasher of the police vehicle in operation.

The police officer operating the police vehicle disputed plaintiff's version of the accident and testified that both vehicles were traveling at a low rate of speed and when he observed plaintiff's vehicle he thought plaintiff would stop her vehicle. After the accident, both vehicles drove from the scene of the accident. The police officer also stated that when his vehicle approached the intersection he brought his vehicle to a complete stop and then "rolled" his vehicle into the intersection when he saw plaintiff's vehicle in the middle of the intersection and at that point his vehicle made contact with plaintiff's vehicle. Further testimony presented by the police officer was that both vehicles were slightly damaged.

The police officer also testified that he was responding to an emergency call regarding an unknown person who had a gun at 1702 Grand Avenue in the Bronx. However, this court refused to permit defendant to present proof regarding the emergency call received by the police dispatcher, since defendant failed to comply with two separate court orders directing defendants to turn over this information to plaintiff's attorney.

A police accident report prepared by an investigating supervisor, Captain Iocco, was introduced in evidence at the trial. He determined that the driver of the police vehicle failed to use "due caution" and failed to properly yield the right of way at [the] intersection".

The jury was required to consider whether the police officer used due caution while driving the patrol car in response to a 911 dispatch call to investigate a person who allegedly had a gun and therefore whether the police vehicle was engaged in an emergency run. Manifestly the jury, in order to find liability, was required to determine whether the police vehicle was engaged in an emergency operation of a vehicle as defined by Vehicle and Traffic Law §114-b and that the competent producing cause of the accident was the manner in which the police officer drove his vehicle in responding to the alleged emergency. (See Kriz v. Schum 75 NY2d 25, 549 NE2d 1155, 550 NYS2d 584; Derdiarian v. Felix Contr. Corp, 51 NY2d 308, 414 NE2d 666; 434 N.Y.S.2d 166;.

When faced with a motion to set aside a verdict as against the weight of evidence the court reviewing the evidence must ascertain whether the jury's conclusion was a fair reflection of [*3]the evidence and "great deference must be given to the fact-finding function of the jury." (Nicastro v. Park 113 AD2d 129, 136, 495 NYS2d 184).

The inherent power and authority to set aside a verdict is outlined in CPLR 4404(a) which provides:

"After a trial of a cause of action or issue triable or 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 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."

Where a post trial motion is grounded on the contention that the verdict is contrary to the weight of the evidence, case law interpreting this standard, has established that a jury's verdict is entitled to the benefit of every fair and reasonable inference which can be drawn from the evidence (See Butler v. New York State Olympic Regional Dev. Auth. 292 AD2d 748, 750, 738 NYS2d 774).

The scope of this court's review of jury awards is prescribed by CPLR §5501 ) that was amended in 1986 (L 1986 ch 682, §10). The operative language provides in pertinent part:

"In reviewing a money judgment in an action in

which an itemized verdict is required by rule forty-

one hundred eleven of this chapter in which it is

contended that the award is excessive or 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

excessive or inadequate if it deviates materially

from what would be reasonable compensation."

The "deviates materially" standard although directed specifically to reviews undertaken by appellate courts has been applied to the trial court when post trial motions, inter alia, are addressed to excessive or inadequate awards. (See Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 116 S. Ct. 2211, 135 L. Ed. 2d 659 [1996] [reviewing New York Law]; Inya v. Hyundai Inc., 209 AD2d 1015, 619 NYS2d 440 [4th Dept. 1994]; Coschetti v. Gralow, 192 AD2d 974, 597 NYS2d 234 [3rd Dept. 1993]; Shurgan v. Tedesco, 179 A.D.A2d 805, 578 NYS2d 658 [2nd Dept. 1992] ).

The standard applied prior to 1986 required the court to intervene when the award was so inadequate or exorbitant that it shocked the conscience of the court (Harvey v. Mazal Am. Ptnrs., 79 NY2d 218, 225, 590 NE2d 224, 581 NYS2d 639; Donlon v. City of New York 284 AD2d 13 727 NYS2d 94; see also Siegel, Practice Commentaries, McKinney Cons. Laws of NY Book 7B, CPLR §5501: 10 at 25). [*4]

The purpose of the amendment to CPLR §5501 as noted by then Governor Mario Cuomo was to "assure greater scrutiny of the amount of verdicts and promote greater fairness" regarding jury awards. Consequently, the deviates materially standard was designed to enhance the authority of the trial and appellate courts to review jury awards.

It is well established that the court's authority to set aside a verdict as against the weight of the evidence and order a new trial requires the discretionary balancing of many factors (Doyle v. Seney 221 AD2d 828, 830, 633 NYS2d 886; Green v. City of New York 138 AD2d 676, 526 NYS2d 489). A fiortori, the discretionary power extended to the trial court to set aside a jury verdict and thereby order a new trial must be exercised with considerable caution, for in the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefit of a favorable verdict. This principle was articulated in the leading case Nicastro v. Park 113 AD2d 129, 495 NYS2d 184 (2nd Dept. 1985 and reaffirmed by the appellate courts holdings in Teneriello v. Travelers Cos. 264 AD2d 772, 695 NYS2d 372, [2nd Dept. 1999] lv. Denied 94 NY2d 758, 705 NYS2d 5; Pickering v. N.Y.City Transit Authority, 299 AD2d 402, 749 NYS2d 428, [2nd Dept. 2002] and Bun Sin Lee v. Pathmark Stores 1 AD3d 219, 767 NYS2d 94 [1st Dept. 2003].

What has also emerged from decisions which have interpreted whether a verdict is against contrary to the weight of the evidence is the settled rule that a verdict should not be set aside as against the weight of evidence unless the jury could not have reached its verdict on any fair interpretation of the evidence. (See Cohen v. Hallmark Cards, Inc., 45 NY2d 493, 499, 382 NE2d 1145, 410 N.Y.S.2d 282; Goldstein v. Snyder 3 AD3d 332, 770 NYS2d 327; Kennedy v. New York City Health and Hosps. Corp., 300 AD2d 146, 751 NYS2d 728; Bernstein v. Red Apple Supermarkets, 227 AD2d 264, 265, 642 NYS2d 303, lv dismissed 89 NY2d 961, 678 NE2d 493, 655 NYS2d 881; Teneriello v. Travelers Cos., supra .

The fair interpretation standard has been applied to jury verdicts in favor of both defendants and plaintiffs. (see, Delgado v. Board of Educ., 65 AD2d 547, 408 NYS2d 949; Tripoli v. Tripoli, 83 AD2d 764, 443 NYS2d 488, affd 56 NY2d 684; Tannenbaum v. Mandell, 51 AD2d 593, 378 NYS2d 468; Pertofsky v. Drucks, 16 AD2d 690, 227 NYS2d 508; Moffatt v. Moffatt, 86 AD2d 864, 447 NYS2d 313, affd 63 NY2d 875, O'Boyle v. Avis Rent-A-Car Sys., 78 AD2d 431, 439, 435 NYS2d 296; Loeb v. Teitelbaum, 77 AD2d 92, 103, 432 NYS2d 487, rearg denied & decision amended 80 AD2d 838; Marshall v. Mastodon, Inc., 51 AD2d 21, 23, 379 NYS2d 177.

Plaintiff in the case at bar was removed from the scene of the accident by ambulance, received emergency treatment at Lincoln Hospital, and discharged the same day. No complaints were noted in the Lincoln Hospital record regarding plaintiff's knee. Plaintiff was treated by a chiropractor for approximately eight (8) months for neck and back pain. Treatment regarding plaintiff's right knee commenced in January 1997 approximately 18 months after the accident when the plaintiff saw Dr. Serge Parisean - a board certified Orthopedist. Dr. Parisean performed arthroscopic surgery on plaintiff's left knee.

With respect to plaintiff's injuries arising from the accident plaintiff's initial bill of particulars refers to a tear of the medial meniscus of the left knee and a partial tear of the medial collateral ligament. Dr. Parisean testified that plaintiff's knee is prone to develop more changes and identified plaintiff's current condition as chondromalacia which he found was attributed to [*5]the trauma plaintiff sustained in the accident. He saw the plaintiff three times in 1997 recommending a knee brace and prescribing Naprosin. Dr. Parisean also testified that plaintiff's condition is permanent and will require surgery to repair the ligament tear he approximated surgical cost to repair the torn ligament as $9,000.00.

Against the background the jury found defendants negligent and awarded $150,000 for past pain and suffering, $600,000 for future pain and suffering and $100,000 for future medical services.

Manifestly, pain and suffering awards are not subject to precise standards

that permit a purely mathematically evaluation in order to determine whether a verdict deviates materially from what is reasonable compensation. (CPLR §5501).

It is well established that the language quoted, although specifically directed to the appellate courts, also applies to the trial court mandating the trial court to review jury awards to determine whether the award is excessive or inadequate.

Consequently, review under CPLR §5501 requires the trial court to evaluate whether the award deviates from comparable awards and as the court observed in Donlon v. City of New York, 284 AD2d 13, 727 NYS2d 94, reviewing comparable awards "cannot, due to the inherently subjective nature of non-economic awards, be expected to produce mathematically precise results, much less a per diem pain and suffering rate." It is also evident that review of jury verdicts for personal injuries to ascertain whether the award is reasonable, involves questions of fact Schare v. Wellsback Elec. Corp., 138 AD2d 477, 526 NYS2d 477 and is the peculiar function of the jury Seider, v. Unger, 245 AD2d 362, 3363, 677 NYS2d 384.

Defendants in support of their contention that the verdict is excessive refer the court to Alvarado v. City of New York 287 AD2d 296 and Myers v. Schaffer Grocery Corp., 281 AD2d 156. The plaintiff in Alvarado, supra , fell on a sidewalk and sustained a fractured patella which required two surgeries and separate hospitalizations for each surgery. The jury awarded plaintiff a total sum of $1,840,129.69 but the court reduced the award for past pain and suffering from $900,000 to $250,000 and the award for future pain and suffering from $400,000 to $150,000.

The Court in Myers, supra , was faced with a verdict that failed to award plaintiff any damages even though the plaintiff sustained a tear of the posterior cruciate ligament which necessitated a surgical repair and several months of physical therapy. Plaintiff's knee continued to be unstable. The court raised plaintiff's award for past pain and suffering to $300,000 and $120,000 for future pain and suffering.

Plaintiff's counsel, opposing defendant's motion, cites several cases in support of his contention that the jury's award did not deviate materially from what is reasonable compensation. Initially, counsel points to the holding in Stedman v. Bouillon 234 AD2d 876 651 NYS2d 685 where the court recognizing the inadequacy of the award, given the seriousness of plaintiff's injuries held that the award did not represent reasonable compensation. The court identified several factors "in assessing the adequacy of the jury's verdict" which include the life threatening nature of the injury, the length of hospitalization, the complications experienced, additional surgeries required, the drugs necessary to stabilize plaintiff's condition and to relieve pain, the length of posthospital convalescence and the success of the outcome (see Dunn v. Moss 193 AD2d 983, 985-986).

The injuries plaintiff sustained in Stedman, supra , were life threatening necessitating [*6]placing plaintiff in the intensive care unit in excess of two months and hospitalization which lasted over three months. Obviously, plaintiff's injuries in Stedman, supra , were significantly more serious than plaintiff's injury in the case at bar. The plaintiff in Edward v. Stamford 267 AD2d 825, 699 NYS2d 835, was also working on a construction project when he was injured. His injuries included fractures of the pelvis, left femur, left ankle and left wrist and his injuries are not analogies to the injury plaintiff Rios sustained and is therefore not informative.

Plaintiff also refers the court to several cases such as Rodriguez v. City of New York, 10 AD3d 551, 782 NYS2d 42 and Schultz v. Turner Construction Company as supporting authority for the jury's verdict in the case at bar which according to plaintiff did not deviate materially from what is considered reasonable compensation. A close rending of both cases measured by the criteria set forth in Stedman, supra , do not provide conclusive authority that the jury award in the case at bar did not deviate materially from reasonable compensation. Both in Rodriguez and Schultz the plaintiffs were injured at a construction site. The injury sustained by plaintiff in Rodriguez is not clearly identified in the court's opinion except for that surgery was performed within one year after the accident. Moreover, the court in both cases was required to resolve other issues not germaine to the case at bar. For example, the jury made a significant award in regarding future lost earnings. In addition, the jury award of $100,000 for past pain and suffering and $300,000 for future pain and suffering was upheld.

This court also reviewed jury verdicts such as Frascarelli v. Port Authority

269 AD2d 422, 702 NYS2d 889, where plaintiff sustained torn medial meniscus, jury award for past and future pain and suffering reduced to $225,000; Pagan v. City of New York, Supreme Court, Bronx County, Index No. 21876/92 ankle and leg fractures plus torn meniscus, two surgeries, total award $443,00; Garcia v. Queens Surface Corp. 271 AD2d 277, 707 NYS2d 53, plaintiff's injury necessitated two surgeries, disabled from work, torn meniscus, degenerative arthritis, continued buckling of the knee, award of $150,000 for past pain and suffering and $450,000 reinstated; Sempre v. New York City Transit Authority 301, AD2d 514; 753 NYS2d 384, 60 year old plaintiff presented evidence of a tear of the medial meniscus and a possible tear of the medial collateral ligament of left knee, verdict of $134,000 for past pain and suffering and $95,000 for future pain and suffering did not deviate materially from what would be reasonable compensation; Wallace v. Singh, Sup. Ct. Kings County, April 7, 2000, Gigante, J., Index No. 041591/97 plaintiff 38 years of age sustained torn anterior cruciate ligament and torn meniscus plus the added complication of deep vein thrombosis. The Appellate Division First Department in Kelly v. The City of New York, 6 AD3d 188, 774 NYS2d 520 unanimously affirmed a verdict that awarded plaintiff $600,000 for past pain and suffering and $894,000 for future lost earnings. Plaintiff in this case sustained tears of the anterior crucial ligament and tears of both the medial and lateral meniscus which after two reconstructive surgeries still caused the knee to buckle requiring further surgery.

Apart from the mandate imposed by CPLR§5501 it is self evident that reviewing prior verdicts does provide some indication of the consensus of opinion of jurors and courts of the proper relation between the character of the injury and the amount of compensation awarded (Ginko v. Fonda 53 AD2d 638, 639, 384 NYS2d 849. After reviewing comparable verdicts and the facts and circumstances related to the case at bar, this court grants defendant's motion to set aside the verdict as excessive but only to the extent of ordering a new trial on the issue of [*7]damages, regarding future pain and suffering and medical expenses unless within 30 days after service upon plaintiff a copy of this decision and order with notice of entry, both parties shall serve and file a written stipulation consenting to decreasing the verdict on damages sustained by the plaintiff for future pain and suffering from $600,000 to $350,000 and in addition, decreasing the award for future medical expenses from $100,000 to $50,000.

That branch of defendant's motion reducing the interest rate is denied. No cogent reasons are advanced by defendants warranting such relief (see Rodriguez v. New York City Housing Authority 91 NY2d 76; 689 NE2d 903, 666 NYS2d 1009.

This constitutes the decision and order of this court.

Dated:

J.S.C. Footnotes

Footnote 1: Vehicle and Traffic Law §1104 provides a pertinent part. (a) The driver of an authorized emergency vehicle, when involved in an emergency operation, may exercise the privileges set forth in this section but subject to the conditions herein stated. (b) The driver of an authorized emergency vehicle may: 1. Stop, stand or park irrespective of the provisions of this title; 2. Proceed past a steady red signal, a flashing red signal or a stop sing, but only after slowing down as may be necessary for safe operation; 3. Exceed the maximum speed limits so long as he does not endanger life or property. 4. Disregard regulations governing directions of movement or turning in specified directions.