Lora v Francis

[*1] Lora v Francis 2005 NY Slip Op 50613(U) Decided on April 21, 2005 Civil Court Of The City Of New York, Kings County Sweeney, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 21, 2005
Civil Court of the City of New York, Kings County

RAMON LORA, Plaintiff,

against

SADIE FRANCIS and PRESTON L. GATEWOOD, Defendants.



119/2004



Plaintiff/ Movant's Counsel:

Weiss & Rosenbloom PC

27 union Square West, Suite 307

New York, NY 10003

Tel.: (212)366-6100

Defendant/Respondent Counsel

Romagnolo & Cambio LLP

60 Bay Street

Staten Island, NY 10301

TEl.: (718) 720-3000

Hon. Peter P. Sweeney, J.

In this action to recover damages for personal injuries resulting from a motor vehicle accident, the plaintiff moves pursuant to CPLR 4404(a) to set aside that portion of the jury's verdict that did not make an award for future pain and suffering and for an order directing a new trial on the issue of future pain and suffering. Plaintiff maintains that the verdict should be set aside in the interest of justice on the ground that it was fundamental error to charge the jury in accordance with PJI 2:281, which, at the time, conditioned an award for future pain and suffering on a finding that the plaintiff suffered a permanent injury or disability.

Defendant opposes the motion and cross-moves for an order setting aside the entire verdict and dismissing the action on the ground that the jury's determination that plaintiff suffered a serious injury under Insurance Law § 5102(d) was against the weight of the evidence.

Factual Background:

Following a trial on liability, the jury returned a verdict attributing 50% of the responsibility for the accident to the defendants and 50% to the plaintiff. The ensuing damages trial began on November 18, 2004 and at ended on November 23, 2004. At the conclusion of the trial, the jury was asked three questions on the issue of whether plaintiff sustained a "serious injury" within the meaning of Insurance Law 5102(d): (1) Did the plaintiff sustain a significant limitation of use of a body function or system? (2) Did the plaintiff sustain a permanent [*2]consequential limitation of use of a body organ or member? and (3) Did the plaintiff sustain a medically determined injury or impairment of a non-permanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following accident?

The jury was given the standard Pattern Jury Instructions ("PJI"), including PJI 2:280 (past pain and suffering), PJI 2:280.1(loss of enjoyment of life) and PJI 2:281 (future pain and suffering). At the time PJI 2:281 contained the following language: With respect to any of the plaintiff's injuries or disabilities that you find to be permanent, the plaintiff is entitled to recover for future pain, suffering and disability and loss of his ability to enjoy life.

The jury returned a verdict answering "No" to the first two questions on serious injury and "Yes" to the third. The jury proceeded to award the plaintiff $50,000.00 for past pain and suffering and $135,000 for future pain and suffering . The award for future pain and suffering was unanimous.

Before the jury was disbanded, plaintiff moved to set aside the verdict arguing, inter alia, that the award for future pain and suffering was inconsistent with the jury's finding that plaintiff sustained only "a medically determined injury or impairment of a non-permanent nature." Plaintiff's counsel requested that a curative instruction be given to the jury to allow them to cure the inconsistency. Plaintiff's counsel asked that the jury be told that they could make an award for future pain and suffering only if they answered yes to either question one or two. Plaintiff's counsel further requested that the jury be told that they could change their answer to the first two questions or vacate the award for future pain and suffering.

Defendant also moved to set aside that portion of the verdict which awarded plaintiff damages for future pain and suffering. Defendant took the position that the award could not be sustained in light of the jury's determination that plaintiff suffered only "a medically determined injury or impairment of a non-permanent nature."

The court reserved decision and took a brief recess to research the issue of whether, as a matter of law, the verdict was inconsistent. The only case the court was able to find on point was Wymer v. National Fuel Gas Distrib. Corp., 217 AD2d 920, 629 NYS2d 929 [4th Dep't 1995]).

The jury in Wymer, as here, determined that the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d) only under the category of "a medically determined injury or impairment of a non-permanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following accident". Nevertheless, the jury awarded her the sum of $35,000 for future pain and suffering. As here, the jury was told that they could award damages for future pain and suffering only "[i]f [it found] that any of plaintiff's injuries are permanent" (Wymer, 217 AD2d at 921, 629 NYS2d at 929).

In setting aside the award, the Appellate Division, Fourth Department stated: [*3] Once the jury had concluded that plaintiff suffered a "medically determined injury or impairment of a non-permanent nature", it was precluded from awarding plaintiff damages for permanent injuries. A plain reading of the statute supports the view that the modifying phrase "non-permanent nature" refers to both injury and impairment (see, Pearson v. Krupka, 202 AD2d 983, 612 NYS2d 702; Westfall v. Wyld, 191 AD2d 866, 594 NYS2d 836). Section 5102(d) of the Insurance Law sets forth specific categories that constitute "serious injury"; the category of "a medically determined injury or impairment of a non-permanent nature" is set off by semicolons, thus signifying that it is intended to be one category (see, Licari v. Elliott, 57 NY2d 230, 235, 455 NYS2d 570, 441 NE2d 1088).

(Wymer, 217 AD2d at 921, 629 NYS2d at 930).

There being no contrary rule pronounced by the Court of Appeals or any other Department of the Appellate Division, the court was compelled to follow Wymer under the principle that "the doctrine of stare decisis requires trial courts in this department to follow precedents set by the Appellate Division of another department until the Court of Appeals or [the Second Department] pronounces a contrary rule" (Mountain View Coach Lines, Inc. v. Storms, 102 AD2d 663, 476 NYS2d 918 [2nd Dep't 1984]). Accordingly, the court concluded that the verdict was inconsistent and gave the jury a curative instruction in accordance with plaintiff's counsel's request. Defendant's motion to simply strike the award for future pain and suffering was denied. After further deliberations, the jury returned a second verdict, in which they again answered "No" to the first two questions, but this time, the jury did not make an award for future pain and suffering.

The plaintiff now moves to set aside the verdict in the interest of justice, maintaining for the first time, that charging PJI 2:281 constituted fundamental error. In support of its motion, plaintiff cites Gallagher v. Samples, 131 AD2d 626, 776 NYS2d 585, 586 [2d Dep't 2004], a case decided several months before the commencement of the instant damages trial. In Gallagher, the court held as follows: [W]e agree with the plaintiff that she is entitled to a new trial with respect to damages for future pain and suffering and future medical expenses. The Supreme Court erroneously charged the jury that it could only award future damages upon a finding that she sustained a permanent injury (see Velez v. Svehla, 229 AD2d 528, 645 NYS2d 842). Although the plaintiff failed to object to the charge, the error was fundamental under the circumstances of the case. Therefore, we reach the issue in the exercise of discretion (see Decker v. Rassaert, 131 AD2d 626, 516 NYS2d 710).

(Gallagher v. Samples, 6 AD3d at 660, 776 NYS2d at 586 (emphasis added). In opposition to plaintiff's motion, defendant maintains that plaintiff waived any objection to the court's charge on future pain and suffering by failing to timely object to the charge. [*4]Defendant attempts to distinguish this case from Gallagher on the basis that the plaintiff was given a second opportunity to request a proper charge and failed to do so.

With respect to its cross-motion, defendant maintains that the jury's finding of serious injury under the 90/180 day category was against the weight of the evidence.

Discussion:

The court notes that in the 2005 Edition of the Civil Pattern Jury Instructions, which came into circulation after the instant damages trial, PJI 2:281 no longer requires a jury to find that an injury or disability is permanent in order for it to award damages for future pain and suffering. In its current form, PJI 2:281, in pertinent part, provides: With respect to any of the plaintiff's injuries or disabilities, the plaintiff is entitled to recover for future pain., suffering and disability and the loss of (his, her) ability to enjoy life. In this regard you should take into consideration the period of time that the injuries or disabilities are expected to continue. . . .

Indeed, the commentary following PJI 2:281 in the 2005 Edition reflects that the charge was amended partly in response to the holding in Gallagher v. Samples, supra .,

The court is confronted with two competing principles. On one hand, it is a well established that where a party fails to preserve its objection to a jury charge, as here, the law as stated in the charge becomes "the law applicable to the rights of the parties in [the] litigation" (Harris v. Armstrong, 64 NY2d 700, 702, 485 NYS2d 523, 474 NE2d 1191 [1984]) and the trial court should not to set the verdict aside based on legal principles which it later decides should have been included in its charge (id.; see also, CPLR 4110-b; Bowne of New York v. International 800 Telecom Corp., 178 AD2d 138, 576 NYS2d 573 [1st Dep't 1991]; Kroupova v. Hill, 242 AD2d 218, 220, 661 NYS2d 218, 221 [1st Dep't 1997]).

On the other hand, CPLR 4404(a) authorizes the court in its discretion to order a new trial "in the interest of justice" upon a motion of either party or on its own initiative. The court may grant a new trial in the interest of justice "if there is evidence that substantial justice has not been done" (Gomez v. Park Donuts, Inc. 249 AD2d 266, 267, 671 NYS2d 103, 103 [2nd Dep't 1998]). The power of a trial court to exercise its discretion and set aside a jury verdict is a broad one (Salazar by Quesnay v. Fisher , 147 AD2d 470, 471, 537 NYS2d 306, 307 [2nd Dep't 1989]. In determining whether or not substantial justice has been done "[t]he trial judge * * * must look to [his/her] own common sense, experience and sense of fairness rather than to precedents in arriving at a decision" (Micallef vs. Miehle Co., 39 NY2d 376, 38, 384 NYS2d 115, 348 NE2d 571 [1976].

Under the facts and circumstances of this case, the court feels compelled to invoke its discretionary power and order a new trial on the issue of future pain and suffering. There is compelling evidence that substantial justice was not done in this case. Clearly, as reflected by the initial verdict, the jury was originally inclined to award the plaintiff a substantial amount ($135,000) for future pain and suffering. Had the jury been properly charged in accordance with Gallagher, this award would have likely been sustainable. In Gallagher, the court determined that charging the jury that a permanent injury or disability was a condition precedent to an award for future pain and suffering was "fundamental error" and directed a new trial on the issue of [*5]future pain and suffering even though there was no objection to the charge. In the court's view, there are no meaningful distinctions between the facts in this case and the facts in Gallagher.

Turning to defendant's cross-motion, a jury verdict should not be set aside as against the weight of the evidence unless the jury could not have reached its verdict on any fair interpretation of the evidence (see Lolik v. Big V Supermarkets, 86 NY2d 744, 746, 631 NYS2d 122, 655 NE2d 163 [1995]; Nicastro v. Park, 113 AD2d 129, 134, 495 NYS2d 184 [2nd Dep't 1985]). Great deference is accorded to the fact-finding function of the jury, and determinations regarding the credibility of witnesses are for the fact-finders, who had the opportunity to see and hear the witness (see Corcoran v. People's Ambulette Serv., 237 AD2d 402, 656 NYS2d 877 [2nd Dep't 1997]).

A review of the evidence in this case demonstrates that a fair basis existed for the jury to find that plaintiff sustained a medically determined injury or impairment of a non-permanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following accident.

Accordingly, defendant's cross-motion is DENIED.

For the above reasons, it is hereby

ORDERED plaintiff's motion to set aside the verdict and for a new trial is GRANTED only to the extent that the portion of the jury verdict that did not make an award for future pain and suffering is hereby set aside. The court hereby directs a new trial solely on the issue of future pain and suffering and disability. The parties are directed to appear in Room 306 of this Courthouse on May 18, 2004 to commence jury selection.

This constitutes the decision and order of the court.

Dated: April 21, 2005 _____________________________

PETER P. SWEENEY

Civil Court Judge