Bermudez v New York City Bd. of Educ.

[*1] Bermudez v New York City Bd. of Educ. 2009 NY Slip Op 51287(U) [24 Misc 3d 1206(A)] Decided on June 24, 2009 Supreme Court, Kings County Starkey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 24, 2009
Supreme Court, Kings County

Jonathan Bermudez, Plaintiff,

against

New York City Board of Education, Defendant.



27303/2002



For the Plaintiff(s):

JOHN K. AVANZINO, P.C.

Trial Counsel to

FREDERIC A. NICHOLSON

26 Court Street, Suite 2015

Brooklyn, New York 11242

For the Defendant(s):

HON. MICHAEL A. CARDOZO

Corporation Counsel by

YAIR S. GOLDSTEIN, ESQ.

100 Church Street, 4th Floor

New York, New York 10007

James G. Starkey, J.

Before the court is defendant's post trial motion seeking to set aside, or alternatively, reduce the jury verdict pursuant to CPLR § 4404 and CPLR § 5501 as against the weight of the credible evidence and excessive in amount. Plaintiff opposes this motion, and cross moves to amend and increase the ad damnum clause from one million ($1,000,000.00) dollars to the total amount of the jury verdict of one million one hundred seventy six thousand seven hundred and sixty four ($1,176,764.48) dollars and forty eight cents. The parties appeared in Part 6 of this Court for oral argument on the motions on March 18, 2009, and decision was reserved.

THE EVIDENCE AND PROCEDURAL BACKGROUND

According to plaintiff Jonathan Bermudez, at approximately 11:05 A.M. on November 19, 2001, while he was attending his sixth grade gym class at the School for Collaborated Studies located at 610 Henry Street, Brooklyn, New York, he fell when a female student bumped him while he was trying to kick the ball during an unsupervised game of line soccer and he incurred a severe bimalleolar fracture of his left ankle. Plaintiff was taken by ambulance to Long Island College Hospital where he underwent emergency surgery performed by Dr. Sheldon Simon. Dr. Simon conducted a closed reduction per cutaneous pin insertion and fixation of the medial malleolus and placed plaintiff in a non-weight bearing cast for six weeks. On February 2, 2002, plaintiff underwent a second surgery to remove the pins from his ankle, after complications developed. In 2004, plaintiff left leg became deformed since the growth plate was affected by the initial fracture. On October 1, 2003, plaintiff underwent a third procedure, an osteotomy, whereby a portion of plaintiff's ankle bone was shaved in order to slow the growth rate since plaintiff had developed a serious imbalance. On November 24, 2003, plaintiff underwent a fourth procedure to remove the hardware put in place during the osteotomy.

On or about December 3, 2001, plaintiff filed a notice of claim with the Office of the Comptroller of the City of New York and the New York City Board of Education. The notice of claim alleged, inter alia, that the employees of the New York City Board of Education "were negligent and careless in their supervision of the plaintiff causing serious personal injuries to plaintiff...in failing to properly supervise the activities of claimant, JONATHAN BERMUDEZ; in failing to have supervisory personnel at the time and place of said occurrence; in allowing claimant to fall at the aforesaid premises." When defendant did not adjust the claim pursuant to the General Municipal Law, plaintiff instituted suit on July 11, 2002.

The parties appeared in Part 6 for trial on October 28 through October 31, November 3 and November 5, 2008. On November 5, 2008, the jury returned a verdict in favor of plaintiff awarding the following damages: $190,000.00 for pain and suffering from the date of the accident to the date of verdict; $840,000.00 for pain and suffering from the date of verdict over plaintiff's life expectancy of 54 years; $50,764.88 for past medical expenses; and $96,000.00 for future medical expenses, all of which totals $1,176,764.80.

LAW AND APPLICATION

Motions to aside the jury verdict pursuant to CPLR § 4404Defendant seeks to set aside the jury verdict pursuant to CPLR § 4404 upon three [*2]separate grounds. The first is that plaintiff presented at trial factual and legal theories unsupported by the notice of claim. Particularly, plaintiff's case at trial focused on a negligent supervision claim asserting that plaintiff — an inexperienced soccer player — was injured while the gym teacher was absent from the gymnasium. The class — comprising students of various skill levels — became unruly, and plaintiff's injury occurred when he was pushed by another student while attempting to kick the soccer ball. Defendant's objection is to the "lack of notice" of the factual allegations supporting plaintiff's negligence supervision claim.

The test of the sufficiency of a notice of claim, and whether there has been compliance with the requirements of General Municipal Law § 50-e, focuses on whether — and based on plaintiff's description — the relevant authorities can locate the place, fix the time, and understand the nature of the occurrence. See Parker-Cherry v. New York City Hous. Auth, 2009 NY Slip. Op. 04037 (2nd Dept. 5-19-09); see also, Kim v. Port Jervis, 40 AD3d 1042, 1044, 837 NYS2d 241 (2nd Dept. 2007). The court is not limited to an examination of the four corners of the document, but may also consider the testimony provided during a General Municipal Law § 50-h hearing as well as any other evidence before it, given the particular circumstances of the case. See Kim v. Port Jervis, supra at 1044.

In this case, plaintiff provided the date, time and location of the accident, as well as the general manner in which the claim arose, in his notice of claim. While the specific facts underlying the manner in which the claim arose were not set forth, there is no requirement for "literal nicety or exactness". See Brown v. City of New York, 95 NY2d 389, 393, 718 NYS2d 4 (2000); Miller v. New York City Tr. Auth., 6 AD3d 405, 774 NYS2d 376 (2nd Dept. 2004) ("The information provided by the plaintiff at the General Municipal Law § 50-h hearing was sufficient to put defendant on notice as to the nature of her claim"). It is concluded therefore, that the notice of claim sufficiently complied with the standards set forth above.

Defendant also seeks to set aside the verdict on the ground that at trial plaintiff presented factual and legal theories not alleged in either the complaint or bill of particulars.

Particularly, defendant claims that the complaint and original bill of particulars set forth a "premises liability" claim and not one for "negligent supervision." Plaintiff claims to have set forth, as part of his complaint, a negligent supervision claim. Specifically, plaintiff focuses on paragraphs twenty two and twenty eight of his complaint.[FN1] Further, plaintiff served a bill of particulars as well as several supplemental bills, the last of which states, inter alia, "[t]hat the negligent actions of the defendants...included: failure of said defendants to supervise the gym class of which infant plaintiff was an involuntary participant, in a proper manner on the day of said occurrence, which caused infant plaintiff's injuries,... failure of defendants to properly [*3]instruct the students in said gym class on the rules and appropriate behavior necessary to participate in the specific activities and games.." Defendant's assertion that an investigation of a "premises liability" matter is somehow different from an investigation of a "negligent supervision" claim, without specifically identifying the claimed differences, is unpersuasive. Both investigations would require an on-site inspection of the accident location, interviews with any possible witnesses, and reviews of any reports of the incident. In the end, all the factual allegations proven at trial were alleged by the time the last supplemental bill of particulars was served.

It is fundamental that in civil actions, plaintiff must recover upon the facts stated in his complaint, or not at all. See Walrath v. Hanover Fire Ins. Co., 216 NY 220, 225, 110 N.E. 426 (1915). A party must recover not only according to his proofs, but according to his pleadings. Id. at 225. The purpose of a bill of particulars is to amplify the pleadings, limit the proof, and prevent surprise at trial. See Jones v. Lefrance Leasing Ltd. Partnership, 2009 NY Slip. Op. 03137 (2nd Dept. 4-21-2009). Affording plaintiff the liberal construction to which he is entitled, it is clear that plaintiff alleged and particularized the facts of his claim by September 2004, well in advance of trial, adequately setting forth the theory of negligence presented at trial.

Lastly, defendant seeks to set aside the verdict upon the ground that it is against the weight of the credible evidence. For a court to conclude that a jury verdict is not supported by legally sufficient evidence, there must be no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusions reached by the jury on the basis of the evidence presented at trial. See Courtney v. Port Authority of NY & N.J., 45 AD3d 801, 802, 846 NYS2d 332 (2nd Dept. 2007). In considering such a motion, the court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the non-moving party. See Figueroa v. Sliwowski, 43 AD3d 858, 841 NYS2d 677 (2nd Dept. 2007).

Defendant claims that plaintiff's version of events as to causation was incredible and unworthy of belief. Specifically, defendant relies on plaintiff's testimony that the gym teacher was in the "locker room", when it was "undisputed" that no room in the building functioned as a locker room. Defendant also claims plaintiff's statement allegedly made to hospital emergency room staff that "he was in school playing soccer" when he "jumped up [and] landed wrong" was inconsistent with his trial testimony and consistent with the gym teacher's trial testimony.

A jury verdict should not be set aside as against the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence. See Lolik v. Big V Supermarkets, Inc., 86 NY2d 744, 746, 631 NYS2d 122, 655 NE2d 163 (1995). A jury's determination as to issues of credibility is entitled to great deference given its opportunity to hear and observe the witnesses. See Beaumont v. City of New York, 56 AD3d 591, 2008 NY Slip. Op. 09013 (2nd Dept. 2008). Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires discretionary balancing of many factors. See Solon v. Voziianov, 56 AD3d 654, 869 NYS2d 121 (2nd Dept. 2008). Here, the parties provided conflicting testimony as to the facts surrounding the events of November 19, 2001. These divergent accounts raised questions of credibility to be resolved by the jury. In this case, it cannot be said that the evidence so preponderated in favor of defendant that the jury could not have reached its verdict in favor of plaintiff on any fair interpretation of the evidence, nor that [*4]plaintiff failed to establish a prima facie case. Simply put, the evidence at trial provided a valid line of reasoning and permissible inferences to support the jury's conclusions. See Scibelli v. Herman, 49 AD3d 627, 856 NYS2d 126 (2nd Dept. 2008). Therefore, defendants' motion seeking to set aside the verdict pursuant to CPLR § 4404 is denied.

Motion to reduce the jury awards for past pain and suffering and future pain and suffering pursuant to CPLR § 5501 as excessive and deviate materially from would be reasonable compensationDefendant also seeks a reduction in the jury verdict pursuant to CPLR § 4404 and § 5501

claiming that the jury's award of damages was excessive. It is well settled that the amount of damages to be awarded for personal injuries is primarily a question of fact for the jury. See Schare v. Welsbach Electric Corporation, 138 AD2d 477, 526 NYS2d 477 (2nd Dept. 1988). At trial, the evidence adduced as to the nature, extent and permanency of plaintiff's injuries was sufficient to support the verdict reached by the jury. Plaintiff's proof included detailed testimony from his treating orthopedic surgeon supported by particularized medical records. The jury was entitled to credit the testimony of plaintiff's expert, particularly when defendant did not call an expert of its own. Therefore, defendants' motion pursuant to CPLR § 4404 is denied.Insofar as defendant's motion pursuant to CPLR § 5501 claims excessiveness of the verdict, nothing in the record indicates that the award in plaintiff's favor was unfair or unconscionable. See Torro v. Altman, 97 AD2d 819, 468 NYS2d 697 (2nd Dept. 1983), lv. den., 62 NY2d 603 (1984). The jury's awards of $190,000.00 for past pain and suffering, which included four separate surgical procedures to plaintiff's left leg and ankle, and $840,000.00 for future pain and suffering over a fifty six year life expectancy does not shock the conscience, and therefore should not be set aside. See Stern v. Calzado, 163 AD2d 299, 557 NYS2d 156 (2nd Dept. 1990). Upon consideration of the nature and extent of the injuries sustained by plaintiff, the court finds that the jury awards past and future pain and suffering do not deviate materially from what would be reasonable compensation. See Ruiz v. Hart Elm Corp., 44 AD3d 842, 844 NYS2d 80 (2nd Dept. 2007). However, and on consent of plaintiff, the award for past medical expenses in the amount of fifty thousand seven hundred and sixty four ($50,764.88) dollars and eighty eight cents is vacated inasmuch as plaintiff's medical expenses were paid by a collateral source that is not seeking reimbursement or asserting a lien.

Plaintiff's cross motion to amend the ad damnum clause in the notice of claim

pursuant to General Municipal Law § 50 (e) (6) and to amend the

ad damnun clause in the complaint pursuant to CPLR § 3025 ( c )

Plaintiff's cross motion seeking to increase the ad damnun clauses in both the notice of claim and complaint is granted, without opposition. The ad damnum clauses are hereby increased by the sum of one hundred and twenty six thousand ($126,000.00) dollars, and plaintiff shall have judgment for the total sum of one million seventy six thousand ($1,076,000.00) dollars. [*5]

CONCLUSION

This constitutes the decision and order of the Court. Plaintiff is directed to settle order in accordance with this decision.

____________________________

J. S. C. Footnotes

Footnote 1: Paragraph twenty two reads as follows: "At all times herein mentioned, the defendant THE CITY OF NEW YORK and THE BOARD OF EDUCATION defendant's servants, agents and/or employees supervised the premises located at School for Collaborated Studies, 610 Henry St., Brooklyn, NY 11231."

Paragraph twenty eight reads as follows: "Solely as a result of the defendant's negligence, carelessness and recklessness, JONATHAN BERMUDEZ was caused to suffer severe and serious personal injuries to mind and body, and further, that JONATHAN BERMUDEZ was subjected to great physical pain and mental anguish."