Marquez v 305 E. 85th St. Realty, LLC

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Marquez v 305 E. 85th St. Realty, LLC 2012 NY Slip Op 31995(U) July 20, 2012 Supreme Court, New York County Docket Number: 113311/2008 Judge: Anil C. Singh Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ANNED ON 712712012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: RON, ANIL C. S m N l SUPREME COURT JUSTICE PART Just/c# f 1 : Index Number : 11331 112068 MARQUEL, JOSEPH 1 vs. 85TH STREET BUILDERS, LLC SEQUENCE NUMBER : 002 dl INDEX NO. MOTION DATE MOTION SEQ NO. VACATE The followlng pmpmn, numbond 1 to -, Notice of MotlonlOrdrr to Show Came Anrwrlng AMdavltr w e n M i d on thlm motion tonor - Amdavit# - Exhlbtta - Exhibits Replying Alndavltm . Upon the foregoing papon, It I ordered that thlr motion ir t q INO(8). 1 E. INOW. IWl).2 -c w w HON. SUPREMECOURTN 1. CHECK ONE: ..................................................................... &&SF 0NON-FINAL DISPOSITION Dl8POSeD ........................... O ~ O N 0CRANED M IS: 3. CHECK IF APPROPRIATE: ................................................ SETTLE ORDER 2. CHECK AS APPROPRIATE: 0DO NOT POST J.S.C. DENIED ORANTED IN PART 0 OTHER 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] JOSEPH MARQUEZ, Phi n ti ff, DECISION AND ORDER -againstIndex No. 1 I33 1 1/2008 305 EAST MTH STREET REALTY, LLC, 85TH STREET BUILDERS, LLC and KNK CONSTRUCTION, LLC, Defendants. Motion Sequence: 002 I FILED HON. ANIL C. SINGH, J.: 4 NMYO plaintiff moves pursuant to CPLR 5501 to increase the j69JUmrt& OFFICE damages for past and future pain and suffering. Defendants oppose the motion. Plaintiff Joseph Marquez sustained personal injuries during the course of his employment as a tin knocker at a construction site in August 2008. Marquez tripped and partially fell into a floor penetration while working at premises at 305 East 85* Street in Manhattan. He was treated for injuries to his back, left knee, and shoulders. Plaintiff underwent spinal fusion surgery, which resulted in a nonunion. A jury trial was held before me in January and February 20 12. At the close I 1 of evidence, the Court granted plaintiffs motion for a directed verdict on liability Page 1 of 4 [* 3] pursuant to Labor Law 240( 1) and 24 l(6). I The jury awarded plaintiff the sum of $200,000 foi past pain and suffering and $1 75,000 for future pain and suffering over 13 years. The jury also made an award for future medical expenses in the sum of $200,000 for a period of 20 years. Discussion The amount of damages to be awarded a plaintiff for personal injuries is a question for the jury Pirmes v, Chase hattan Autmoti ve Finance Corp-,so A.D.3d 18,28 [2d Dept., 20081). The standard for reviewing the inadequacy or I excessiveness o f a jury award is whether it deviates materially from what would be reasonable compensation (CPLR 5501 [c]) (Turnseta v. W w - J .awe! Glen I I m, A.D.3d 632,634 [2d Dept., 20121 (internal quotation marks omitted)). 91 Since the inherently subjective nature of noneconomic awards cannot produce i mathematically precise results, the reasonableness of compensation must be measured against the relevant precedent of comparable cases (u, at 635). A verdict will not be set aside unless the preponderance of the evidence is so great that the jury could not have reached its verdict upon any fair interpretation \ of the evidence (Pavlou v, City of New York, 21 A.D.3d 74, 76 [l Dept., 20051). Moreover, the evidence must be construed in the light most favorable to the party that prevailed at trial (Motichka v. Cody, 279 A.D.2d 3 10 [I Dept., 2001I). Page 2 of 4 J , [* 4] Where the case presents conflicting expert testimony, [tlhe weight to be accorded the conflicting testimony of experts is a matter peculiarly within the province of \ the jury (Torricelli v, PisacanQ 9 A.D.3d 291 [ 1 Dept., 2004](citation omitted); , ssuk@ChnlcwinSki v, wisnicki, 2 1 A.D.3d 791 [ 1 Dept., 20031). During the trial, defendant elicited testimony and presented medical records to show that plaintiff did not injury his back when he fell at his workplace in August 2008. Instead, defendant offered evidence to show that plaintiffs back injury was causally connected to a subsequent fall in May 2009. Defendant s counsel called the jub s attention to plaintiff sown medical records from Orlin & - Cohen Orthopedic Associates, LLP, as evidence that plaintiff s back injury arose I from the subsequent, unrelated accident. For example, defendant called the jury s attention to office notes for May 5 , 2009, indicating that plaintiff was suffering from back pain since he fell on May 3, 2009. The record also indicated that the date of injury was May 3, 2009. According to defendant, subsequent office visits at Orlin & Cohen continued to reference the date of May 3, 2009, as the date when plaintiff s lower back pain originated. l a The record also reflects that, on cross-examination, plaintiff acknowledged that some of his medical records, completed by him, established a date of back Page 3 of 4 [* 5] injury in May 2009, months after the subject acGident (Trial Transcript, pp, 772- 774). Considering the medical facts and circumstances of this case, the evidence that plaintiffs back injury could have been caused by a subsequent fall, as well as comparable precedent, we conclude that the award of $200,000 for the plaintiffs past pain and suffering and $175,000 for future pain and suffering does not deviate materially from what is reasonable compensation. We reject the authorities cited by the plaintiff as insufficiently similar to the nature, extknt, circumstances and duration of the injuries he sustained. I Finally, plaintiff asserts that the jury award for future damages is internally inconsistent because the jury awarded damages for future pain and suffering for 3 years but awarded damages for medical care for 20 years, In short, plaintiffs contention is a non sequitur. Damages for pain and suffering are separate and distinct f o damages for medical care, and there does rm not appear to be any case law requiring such damages to be awarded for precisely the same amount of time; Plaintiffs contention is, therefore, m For the above reasons, plaintiffs motion is denied. vePLE D I The 'foregoing constitutes the decision and order' of the court. Date: JUL 27 2012 NEW YORK COUNTY CLERKS OFFICE 7 / u j i+ New York, New Yark Page 4 of 4 HON.ANIL.c, SINOW SUPREME COURTJUSTICE

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