Kaczorowska v 110 Wall St. L.L.C.

[*1] Kaczorowska v 110 Wall St. L.L.C. 2005 NY Slip Op 51486(U) [9 Misc 3d 1110(A)] Decided on August 4, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 4, 2005
Supreme Court, New York County

Magdelena Kaczorowska, Plaintiff,

against

110 Wall Street L.L.C. and 110 Wall Street L.P., Defendants.



110710/03

Martin Shulman, J.

Defendants, 110 Wall Street, L.L.C. and 110 Wall Street, L.P. ("defendants" or "Wall Street"), move for an order pursuant to CPLR §4404(a) seeking the following relief in relation to a jury verdict rendered on June 7, 2004[FN1]: 1) notwithstanding the verdict, entering a judgment in defendants' favor dismissing the complaint; 2) setting aside the jury verdict as against the weight of the evidence (CPLR §4404[a]) and ordering a new trial; or 3) alternatively, seeking remittitur. Plaintiff, Magdelena Kaczorowska ("plaintiff" or "Magdelena"), opposes Wall Street's motion.

The jury trial began on March 24, 2005 and ended on April 1, 2005. As noted on the Jury Verdict Sheet (Exhibit A to Wall Street's Motion,) six members of the jury reached an agreement and reported that defendants were negligent and that their negligence was a substantial factor in causing Magdelena's injuries. These same six members reported that plaintiff was negligent. However, five of the six members of the jury reported that plaintiff's negligence was not a substantial factor in causing her injuries. All six jury members awarded Magdelena the following damages:

a) Past pain and suffering.................................................... $275,000

b) Future pain and suffering................................................. $275,000 (over 52.4 years)

c) Past medical expenses.................................................... $ 50,000

d) Future Medical expenses................................................. $ 20,000 (over 52.4 years)

Total Award $620,000

[*2]Brief Factual Background and Circumstances

of the Accident From Trial Transcript

Magdelena, 29 years old and a former model, emigrated from Poland in 1998 and subsequently earned a Masters degree in Business Administration. Shortly thereafter, plaintiff began her employment as a recruitment director for Worldco, a private brokerage company which occupied several floors as a tenant at defendants-owned building located at 110 Wall Street, New York, New York. During the course of her employment, Magdelena obtained various trading licences and conducted stock trading activities at 90 Wall Street and 110 Wall Street. Plaintiff, in addition to utilizing an office on the 18th floor, conducted job interviews in various conference rooms located on the 19th floor.

0n November 8, 2002, the day of the accident, plaintiff began her day at 7:30 am and day-traded during the morning hours. After the 12:00 pm lunch hour, Magdelena proceeded to the 19th floor to conduct various interviews. The elevators open to a narrow hallway leading to the 19th floor reception area. The reception area entrance way consists of a wood door which routinely remains open to the right of the entrance way facing the reception desk. To the right and left of the doorway are floor-to-ceiling glass panels encased within thin metal framing. These plate glass wall panels had no etched markings and/or decals. A receptionist, Micki, was at her desk in the reception area. After escorting a number of interviewees to the respective conferences rooms, plaintiff had a telephone conversation with the managing director using a reception area telephone located to the right of the doorway (to the left of the doorway facing the hallway corridor) near a couch and a small table. After ending the call, Magdelena, looked directly out to the hallway corridor and took about three brisk steps towards what she perceived to be the open doorway. However, instead of walking through the doorway, plaintiff walked into the glass wall panel immediately adjacent to the left of the open door. She fell back after seriously injuring her nose. During the ensuing three years, plaintiff underwent two surgeries to repair the nose fracture and arguably resolve related sequelae therefrom.

The Motion

Defendants essentially challenge a trial ruling which precluded a potential defense witness, Michelle Balloy ("Balloy"), who they claim observed the accident, from testifying at trial. While conceding that the CPLR §3101(a) notice about this witness, purportedly mailed to plaintiff's counsel, did not include an address or other appropriate pedigree information (see, December 21, letter as Exhibit C to defendants' post-verdict motion); still, counsel contends that such action was not willful and contumacious as to warrant the drastic ruling of preclusion. Thus, it is argued that a new trial is warranted to enable this alleged eye-witness to testify.

Wall Street further contends that the jury's verdict finding defendants completely liable for plaintiff's accident while finding plaintiff's negligence not to be a substantial factor in causing the accident is against the weight of the evidence, warranting either dismissal of the action or, alternatively, a new trial.

Finally, defendants claim the verdict was excessive and should be reduced. They contend that jury verdict awards in cases historically involving nose injuries ranged from a modest $3000 to a maximum of approximately $138,000 (see, defendants' memorandum of law in support of its post-verdict motion at p.11). [*3]

Plaintiff obviously does not challenge the jury verdict. In opposing defendants' post-verdict motion, Magdelena's counsel highlights the following points: 1) defendants neither gave proper and timely notice of the alleged eye-witness, Baloy, whom they intended to testify at trial, nor made a showing that Baloy's potential testimony would have altered the outcome of the trial; 2) to the extent Wall Street's counsel implicitly argues it was inconsistent for the jury to find plaintiff negligent but that her negligence was not a substantial factor in causing her injury, such argument was waived as defendants never raised this point prior to the jury's discharge; 3) in any event, it was entirely reasonable for the jury to find Magdelena's negligence was not "a cause of the injury"[FN2]; 4) the facts as to the extent of the plaintiffs' damages underlying the appellate case law defendants rely upon to obtain remittitur are factually inapposite to the case at bar; 5) the jury considered credible trial evidence which established plaintiff underwent two surgeries to repair the serious nasal fracture, experienced and continues to experience breathing difficulties, has a cosmetic deformity and may have to undergo a third surgery, albeit with profound reluctance; and 6) based on the foregoing factors, the verdict was fair and reasonable.

Discussion

After reviewing the trial record further, this court finds no basis to modify its trial ruling which precluded Baloy from testifying as a defense witness and grant a new trial (see, Trial Transcript at p. 326, line 2 through p. 336, line 25 as Exhibit E to post-verdict motion.) With the exception of the December 21, 2004 letter, the formal disclosure documentation exchanged between the parties prior to trial did not afford plaintiff with any notice of a potential defense witness who was present and observed plaintiff prior and subsequent to her accident. If defendants possessed such information then it was incumbent upon them to disclose this information presumably "material and necessary in the . . . defense of an action." in a timely manner (CPLR §3101[a]). And even assuming plaintiff's counsel received the December 21, 2004 letter, this notice did not furnish pertinent pedigree information as to who Baloy is (i.e., Was Baloy Micki, the 19th floor receptionist?), what her relationship was to the parties and where she could be located to be interviewed or potentially deposed as a non-party witness. Even more to the point, defendants never made any application to proffer a showing or offer of proof at the time of the in limine ruling as to what Baloy's proposed testimony would entail, viz., the precise scope of this testimony and whether it would go to the heart of the liability issue and be material. On this trial record, we will never know. Because this non-party witness notice was deficient and prejudicial to plaintiff, this court did not abuse its discretion in granting the preclusion order during the presentation of the defense. People v. Bestline Products, Inc., 52 AD2d 17, 382 N.Y.S.2d 497 (1st Dept., 1976).

As noted earlier, defendants question the correctness of the jury finding plaintiff negligent while inconsistently finding her negligence not to be a substantial factor in causing her injury. Preliminarily, to the extent the jury's answers to Questions 3 and 4 on the Verdict Sheet (Exhibit [*4]A to post-verdict motion) were perceived to be inconsistent, it was incumbent upon defendants' counsel to point this out to the court before the jury is discharged. Otherwise, this objection is waived. (City of Binghamton v. Serafini, 8 AD3d 835, 778 N.Y.S.2d 547 [3rd Dept., 2004]).

The more interesting question is whether the verdict is against the weight of the evidence to the extent that the jury found plaintiff's negligence played no role in causing her nasal fractures; that is to say, such negligence was not a substantial factor in causing her injury.

It has been generally recognized that the "'issue of whether a defendant's negligence was the proximate cause [substantial factor] of an accident is separate and distinct from the negligence determination. A defendant may act negligently without that negligence constituting a proximate cause of the accident'. . ." Pavlou v. The City of New York, et al., ___A.D.3d ___, 797 N.Y.S.2d 478, 2005 NY App.Div. LEXIS 7022

(1st Dept., 2005). This principle is equally applicable in resolving the issue of comparative negligence between a plaintiff and defendant. Against this backdrop, when would it be inconsistent to find a party was at fault and not find that fault to be a substantial factor in causing the accident? It would be a case where "the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause. . ." Karsdon v. Barringer, 20 AD3d 551, 799 N.Y.S.2d 548 (2nd Dept., 2005)[FN3].

In the case at bar, there was unchallenged expert testimony that the floor-to ceiling, unmarked transparent glass wall panels adjacent on both sides of the 19th floor reception entranceway created the illusion of unobstructed space so that a reasonable person might fail to note the existence of such panels. See, Madey v. Gray Drug Stores, Inc., et al., 40 AD2d 270, 339 N.Y.S.2d 804 (4th Dept., 1973).[FN4] Notwithstanding Magdalena's familiarity with the 19th floor reception area entranceway and the configuration of the floor-to ceiling glass panels adjacent to both sides of the open doorway, it was logically possible and reasonable for the jury to conclude that defendants were negligent in failing to properly mark these transparent glass panels and that [*5]their negligence "alone proximately caused plaintiff's harm. . ." Grassi v. Sea Shore Restaurant, 2 AD3d 222, 768 N.Y.S.2d 315 (1st Dept., 2003).

Thus, this court finds there were valid lines of reasoning and permissible inferences for the jury to draw upon that would lead these rational jurors to reach their conclusions based upon the testimonial and other admitted evidence presented at trial and decide the triable issue of whether defendants' negligence alone was a substantial factor in causing plaintiff's injuries, Cohen v. Hallmark Cards, Inc., 45 NY2d 493, 410 N.Y.S.2d 282 (1978). This ample trial record does not justify a judgment notwithstanding the verdict awarding a judgment in favor of defendants dismissing the complaint as a matter of law. LePatner v. VJM Home Renovations, Inc., 295 AD2d 322, 744 N.Y.S.2d 337 (2nd Dept., 2002); cf., Carnavalla v. Osso, 301 AD2d 620, 753 N.Y.S.2d 887(2nd Dept., 2003).

Having found sufficient evidence in the trial record to support the verdict, this Court must then inquire as to whether the conflicting testimonial and other documentary evidence presented by the parties and resulted in "a verdict for the plaintiff. . . so preponderate[d] in favor of the [defendants] that [the verdict] could not have been reached on any fair interpretation of the evidence. . ." Moffatt v. Moffatt, 86 AD2d 864, 447 N.Y.S.2d 313 (2nd Dept., 1982) and quoted with approval with bracketed matter added in Lolik et al., v. Big V Supermarkets, Inc., 86 NY2d 744, 631 N.Y.S.2d 122 (1995). In conducting a factual inquiry of the trial record, this Court finds no basis to set aside the verdict as against the weight of the evidence and direct a new trial.

In continuing the requisite analysis as to the correctness of the verdict, 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 excessive. . . 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 N.Y.S.2d 658 (2nd Dept., 1992); Prunty v. YMCA of Lockport, 206 AD2d 911, 616 N.Y.S.2d 117 (4th Dept., 1994); see also, Donlon v. City of New York, 284 AD2d 13, 727 N.Y.S.2d 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 N.Y.S.2d 99, 101 (1st Dept., 1999).

With these principles in mind, this Court has reviewed the cases respectively cited by defendants' counsel revealing a range of awards for nose injuries reaching a ceiling of approximately $138,000. It must be noted that the fact patterns recited in these cases do not particularize the extent of the nasal injuries and whether surgeries were respectively performed to repair the damage and related sequelae. A further search of the New York Jury Verdict Reporter (renamed the New York Jury Verdict Review and Analysis) has disclosed verdicts far greater [*6]than the range Defendants appear to rely on for remittitur. Illustrative are: Zucker v. County of Westchester, 1998 WL 2015321 (NY Sup. Ct.), N.Y.J.V.Rep. XVI /19-18 (verdict of $330,000: nasal fractures, deviated septum and septal perforation which could cause future breathing difficulties); Martin v. Schneider, 2002 WL 31023672 (NY Co., Sup. Ct.), 19 N.Y.J.V R.A. 7:4 (verdict of $415,000 including $30,000 in punitive damages: fractured nose, deviated septum and breathing difficulties injuries which will require complicated surgery because of plaintiff's prior medical history); and Perna v. Linxalaona, 1995 WL 1934277 (Suffolk Co., Sup. Ct.), 12 N.Y.J.V.R.A. 10:C1 (verdict of $325,000: a nasal fracture, deviated septum and breathing difficulties requiring two surgeries).

After a careful review of the trial transcript and the foregoing reported verdict awards for plaintiffs with comparable injuries, this Court finds that the jury awards for past and future pain and suffering deviate materially from what would be reasonable compensation and are excessive. This Court grants that branch of defendants' post-verdict motion for remittitur to decrease the jury's aggregate pain and suffering award of $550,000 to $275,000 ($137,500 for past pain and suffering and $137,500 for future pain and suffering.) The unchallenged aggregate award of $70,000 for past and future medical expenses[FN5] increases Magdelena's total award to $345,000 and constitutes reasonable compensation under these circumstances.

For the foregoing reasons, this court grants that branch of defendants' post-verdict motion to set aside the jury verdict on damages for 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, plaintiff executes a stipulation agreeing to decrease the jury's aggregate award for pain and suffering from $550,000 to $275,000 ($137,500 for past pain and suffering and $137,500 for future pain and suffering.)

Thereafter, the parties shall submit a proposed money judgment for signature consistent with this decision and order. 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

August 4, 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 N.Y.S.2d 889 (1st Dept.,1989).

Footnote 2: Stated differently, plaintiff believed "she was approaching the doorway. . .[and] smacked straight into clear unmarked glass. A reasonable jury can plainly infer from the evidence that the accident happened as a result of the glass having no markings and that plaintiff's own negligence, whatever it might have been, was not a substantial factor in causing this injury (Tolchin Opp. Aff. at ¶44).

Footnote 3: In this action, plaintiff Karsdon found herself accidently locked out of defendant's home after having dinner there with a friend seeking to lease same. There was evidence that plaintiff had consumed about a half a bottle of wine. While feeling her way around the side of the house in total darkness presumably looking for a means of ingress, plaintiff fell into an unlit open cellar stairwell and fractured her right tibia. In reversing the trial court's determination not to set aside the liability verdict, the Appellate Division, Second Department, determined that the jury's finding that plaintiff's "negligence was not substantial factor could not have been reached upon a fair interpretation of the evidence. . ." Id.

Footnote 4: Apparently due to a spate of accidents, State and City statutes and regulations were subsequently enacted for the protection of the general public which require owners of public and commercial buildings to ensure that transparent glass doors and side lights (adjacent glass wall panels) are "marked in such manner as shall be calculated to warn persons using the same that such doors are glass doors. . ." ( Labor Law §241-b; see also, 12 N.Y.C.C.R. § 47.1 et seq. and 2 R.C.NY §4-02). This court had ruled that these provisions do not apply to the interior glass wall structure that is the subject of this litigation and plaintiff's expert was foreclosed from testifying as to whether these safety regulations were implicated. However, the jury was free to consider his uncontroverted opinion for the need to properly mark such glass panel walls as a reasonable and prudent safety measure.

Footnote 5: "In considering the conflicting testimony of the parties' respective [medical] 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 N.Y.S.2d 427 (1st Dept., 2003) (i.e., the need for future surgery and its attendant costs).