Ulysse v Jean-Jacques

[*1] Ulysse v Jean-Jacques 2005 NYSlipOp 51084(U) Decided on July 8, 2005 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: GOLIA, J.P., RIOS and BELEN, JJ.
2004-1086 K C

Kerline Ulysse, Respondent, -and- Ernest Labre, Plaintiff,

against

Micheline Jean-Jacques, ANTOINE JACQUES, CHARLES FANARO, SHERRY J. SCHLOSSBERG, MARIE D. PEPE and SUSAN K. MAHAN, Defendants, -and- Denise Flaherty, as Administratrix of the Estate of John Flaherty, Appellant.

Appeal by defendant Denise Flaherty, as Administratrix of the Estate of John Flaherty, from an order of the Civil Court, Kings County (S. Krauss, J.), entered June 7, 2004, which granted plaintiff Kerline Ulysse's motion to set aside the jury verdict award for future pain and suffering as inadequate and ordered a new trial on this issue unless appellant stipulated to increase the award for future pain and suffering from the sum of $50,000 to the sum of $200,000. [*2]

Order unanimously affirmed without costs.

On September 28, 1991, plaintiff Kerline Ulysse was a passenger in a car owned by defendant Micheline Jean-Jacques and driven by defendant Antoine Jacques when the Jacques' vehicle struck the vehicle owned by defendant Sherry J. Schlossberg and operated by defendant Charles Fanaro, and then was itself struck by the vehicle owned and operated by the late John Flaherty. Defendants Micheline Jean-Jacques and Antoine Jacques settled with plaintiff Kerline Ulysse prior to trial.

After trial, the jury apportioned liability among the defendants and, on the issue of damages, awarded plaintiff Kerline Ulysse $100,000 for past pain and suffering, and $50,000 for future pain and suffering. It found that plaintiff Ernest Labre failed to satisfy the threshold requirement of suffering a serious injury. Plaintiff Kerline Ulysse moved to set aside the jury verdict as to its award for future pain and suffering on the ground of inadequacy. The court granted said motion and ordered a new trial with respect to this issue unless appellant stipulated to increase the award for future pain and suffering from the sum of $50,000 to $200,000.

In our opinion, the order should be affirmed. The plaintiff, who was 22 years old at the time of the accident on September 28, 1991, underwent arthroscopic surgery to her right knee in 1992 as a result of injuries she suffered in the accident. Her surgeon testified that he has conducted follow-up examinations from 1993 - 2003. He stated that her right quadricep (thigh muscle) has atrophied as a result of her favoring her left leg because of continuing pain in her right knee. The flexion in the knee is normally 120 degrees but by 1993, flexion in plaintiff Ulysse's right knee had decreased to 90 to 95 degrees, and in 2003 it had further decreased to 50 degrees. He stated that the knee has developed crepitation and traumatic arthritis which continues to wear down her knee cap. Plaintiff's surgeon stated that she will have to undergo repeated arthroscopic surgeries to clean out the knee joint and will eventually need a total knee replacement.

Plaintiff testified that as a result of the accident she has pain and cannot walk for long periods of time. She also cannot run or exercise. Her knee buckles and locks, and its motion is restricted.

In view of the foregoing, it is apparent that plaintiff will be severely hampered by the injury to her right knee for the rest of her life. Under the circumstances, the trial court properly concluded that the verdict of $50,000 for future pain and suffering was clearly inadequate and that a new trial would be required as to said issue unless the sum of $200,000 was stipulated to by appellant, which sum we find not to materially [*3]
deviate from what would be reasonable compensation under the circumstances (see CPLR 5501 [c]; Frascarelli v Port Auth. of N.Y. & N.J., 269 AD2d 422 [2000]; Cruz v Manhattan & Bronx Surface Tr. Operating Auth., 259 AD2d 432 [1999]).
Decision Date: July 08, 2005