Rossi v New Amsterdam, Inc.
Annotate this CaseDecided on May 23, 2005
Supreme Court, New York County
Dominick Rossi and DIANE ROSSI, Plaintiffs,
against
New Amsterdam, Inc., Defendant.
123448/99
Donna M. Mills, J.
A trial of this matter occurred in this Court in May of 2004. The plaintiff, Dominick Rossi sought damages for injures sustained in an accident which occurred on November 8, 1999, when he was struck on the back of the neck by a door buck that was dropped by a carpenter working above him. At the conclusion of the trial of this matter the jury awarded him damages in the amount of $26,032.00 for past medical care, and $50,000.00 for past pain and suffering, but no award for past lost earnings, and no awards for future pain and suffering, lost earnings or medial care. Moreover, plaintiff Diane Rossi, Mr. Rossi's wife, was awarded no damages for loss of services or consortium. Plaintiffs now move to set aside the verdict on damages and loss of consortium, on the grounds that those awards were inadequate, inconsistent and against the weight of the evidence.
A jury verdict should not be set aside as contrary to the weight of the evidence unless it could not have been reached by any fair interpretation of the evidence (see Nicastro v Park, 113 AD2d 129). "[T]he determination of the jury which observed the witnesses and the evidence is entitled to great deference" (Hernandez v Carter & Parr Mobile, 224 AD2d 586, 587).
The plaintiffs' contention that the jury verdict on damages was inadequate is without merit. The amount of damages to be awarded for personal injuries is primarily a question of fact for the jury (see Mogil v Gorgone, 225 AD2d 674). Moreover, issues regarding credibility of witnesses and accuracy of testimony are for a jury to determine, and its verdict should not be upset if it could have been reached by any fair interpretation of the evidence (see Policastro v Savarese, 171 AD2d 849), especially where conflicting medical evidence is adduced at trial (see Maldonado v WABC Towing Corp., 121 AD2d 517). Only where the award "deviates materially from what would be reasonable compensation" is a new trial to be granted (see CPLR 5501 [c]; Mogil v Gorgone, supra).
There was ample evidence presented at trial that Dominick Rossi suffered from a preexisting condition and also had a serious accident after the accident which was the subject of this lawsuit. Specifically, there was undisputed testimony that Mr. Rossi had a history of multiple accidents, other lawsuits and similar claims to the subject accident [*2]giving rise to this lawsuit. Although plaintiffs' counsel took the position that these other incidents were minor in nature, Mr. Rossi was treated by multiple physicians and medical care providers with many documented treatment visits for head, neck and back injuries and complaints. In this case, since conflicting evidence was presented at trial, the jury reasonably could have concluded that the majority of the injuries of the plaintiff Dominick Russo resulted from preexisting conditions or a subsequent condition.
It is evident that the jury agreed with the defendant's expert witnesses that Mr. Rossi's condition was not necessarily related to the subject accident, and was at least partially attributable to a preexisting condition. Thus, in light of the history; multiple accidents both before and after the subject incident; extensive medical treatment and care related to these other accidents and obvious issues of fact as to plaintiff's actual injuries in this particular incident, as well as proximate causation, the verdict of the jury should not be disturbed because it cannot be said that the jury award deviates materially from what would be reasonable compensation (see Ramos, v Ramos, 234 AD2d 439, 441). Additionally, the lack of any award for loss of services is not shocking given the testimony that Mr. Rossi returned to full time employment three weeks after the incident without hospitalization and/or surgery, and taking into account Mrs. Rossi's loss of consortium claims in the two other lawsuits related to accidents both before and after the subject incident, wherein permanent disability was claimed.
This Court concludes that the plaintiff has failed to prove that the jury verdict was inadequate. Therefore, the Court finds sufficient evidence to support the verdict rendered by the jury on the issue of damages.
The plaintiffs' remaining contention is without merit. In the instant case, the complained of error attributed to the Court would not have brought about a different verdict.
Accordingly, plaintiffs' motion is denied in its entirety. This constitutes the decision and order of the Court.
Dated:So Ordered
__________________________Donna M. Mills
J.S.C.
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