Mendez v 131 & 137 7th Ave. S., LLC

Annotate this Case

Download PDF

Mendez v 131 & 137 7th Ave. S., LLC 2007 NY Slip Op 34593(U) July 3, 2007 Supreme Court, New York County Docket Number: 107170/04 Judge: Martin Shulman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] I i SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YPRK: PART 1 -----------------------------~------------------------------------------x I ERIC MENDEZ, Plaintiff, Index No: 107170/04 -against7 131 & 137 7th AVENUF SOUTH, LLC, CROMAN, REAL TY CORP. and YILLAGE GRILL INC., d/b/a EDELWEISS BAR and LOUNGE, D~fendant. Decision and Order /::11.. oll.J. ~ /J ----~~-~~--------~~---~~------~~x ~""1)-~~~ ~((1,> Hon. Martin Shulma~, J.S.C.: Plaintiff, Eric ~~,/jlr M~ndez ("Mendez" or "plaintiff'), moves for an order v.?c~~ jury verdict rendered on F~bruary 28, 2007 which awarded Mendez $15,000.00 for plaintiff's past pain and suffering, $26,000.00 for past lost earnings and $75,000.00 for future I pain and suffering for ~orty (40) years. Plaintiff claims no other errors of fact or law underlying the jury ver~ict determining defendant Village Grill's negligence, plaintiff's I and Village Grill's resp~ctive percentages of fault and a damage award for only past lost i earnings. I I Specific to the i~sue of liability, the jury found both co-defendant, Village Grill Inc. I I I d/b/a Edelweiss Bar and Lounge ("Village Grill") 1 and plaintiff negligent and their respective negligence io have been a substantial factor in causing plaintiffs slip and fall accident on ice on the lidewalk in front of Village Grill. In determining the percentage I 1 unani~ously The jury concluded that defendant 131 & 137 7111 Avenue South, L.L.C., the owner of the building in which Village Grill rented commercial space, and the owner's managing ageht, defendant Croman Realty Corp., were not liable for plaintiff's 1· accident. [* 2] of fault, the jury foundI Mendez was 65% responsible and Village Grill 35% responsible for this accident. Plaintiff contends the past and future pain and suffering awards are inadequate and deviate materially from what would be reasonable compensation (CPLR 4404[a]). 2 Village Grill opposes plaintiff's motion. In his request for additur, plaintiff claims the trial evidence indubitably showed he suffered a bi-malleolar fracture of his ankle and underwent two surgeries. The first surgery performed on February 26, 2004, over a month after the accident, required internal fixation with al plate and six (6) screws to stabilize the fibula and two (2) additional screws to stabilize the medial malleolus. During the second surgery I I performed a year late~, the orthopedic surgeon removed the hardware previously i inserted to promote p~oper alignment and healing of the fractured ankle joint. Mendez's treating surgeon also testified at trial that plaintiff's reduced range of motion ! I of his right ankle is pe~manent, plaintiff will be incapable of performing work which I I I requires "extensive lifting, walking or standing ... "(Pollack Aff. in support of Motion at W) and Mendez will clntinue to suffer pain and arthritic changes within the ankle joint. Relying on these and lther facts as well as certain Appellate Division precedents, plaintiff seeks an increlse of the aggregate pain and suffering award (after I I apportionment) to $250,000.00. I I I I I l I I 2 After the verdict was rendered, this court granted plaintiff's counsel leave to file this motion seeking additur and permitted the parties to stipulate to extend their time to present written argumsnts. See, Brown v. Two Exchange Plaza Partners, 146 A.D.2d 129, 539 N.Y.S.2d 889: (1 51 Dept.,1989), affd, 76 N.Y.2d 172, 556 N.Y.S.2d 991 (1990), citing "(CPLR 2004; se~, Weinstein-Korn-Miller, NY Civ Prac para. 4405.05)." I I 1 -2- [* 3] In opposition, Yillage Grill argues that: 1) the aggregate award for pain and suffering was not against the weight of the evidence; 2) there was no credible evidence to support the notion that at any time prior to his accident, plaintiff had engaged in any occupation which required heavy lifting, jumping or other related activity which he would be unable to perform ~ince the accident, to date; 3) as recorded as a July 22, 2005 note in the narrative report, plaintiff's treating surgeon cleared Mendez for full activity and duty except for "impact" activity {Exhibit A to Walsh Opp. Aff. at p. 12); 4) in Mendez's 1 deposition testimony (lead to the jury, plaintiff acknowledged making no effort to seek sedentary, clerical work approximately a year and half after the accident; and 5) plaintiff's credibility wJs sorely tested when a surveillance video taken in January, 2007 I I revealed the plaintiff: : walking qutside, near his residence, on two particular occasions. The jury yiewed the plaintiff walking around his fairly new mini van on both dccasions. Although there were no overt comments made during th~ defendant's summation about the van, and how it came to be that an individual who apparently had not done any work subsequ$nt to the accident, was able to afford a fairly new van, it I became the elephant in the room; in that while it may not have been disdussed, was clearly there for all to see ... {Walsh Opp. I Aft. at p. rt 0). Discussion CPLR §5501 {c) ptates, in relevant part: In reviewing a money judgment in an action in which an itemized Jerdict is required in which it is contended that the award is . j . . inadequate and that a new trial should have been gra~ted unless a stipulation is entered to a different award, th~ appellate division shall determine that an award is ... inadequate if it deviates materially from what would be reasonablb compensation. I I I : -3- [* 4] I I I Trial courts may also! apply this material deviation standard in overturning jury awards I ! but should exercise their discretion sparingly in doing so. Shurgan v. Tedesco, 179 A.D.2d 805, 578 N.Y.S.2d 658 (2"d Dept., 1992); Prunty v. YMCA of Lockport, Inc., 206 A.D.2d 911, 616 N.Y.S .. 2d 117 (4th Dept., 1994); see also, Donlon v. City of New York, 284 A.D.2d 13, 727 ~.Y.S.2d 94 (1st Dept., 2001) (implicitly approving the application of this standard at the trial level). For guidance, a trial court will typically turn to prior I verdicts approved in similar cases, but must undertake this review and analysis with caution not to rigidly +here to precedents (because fact patterns and injuries in cases are never identical) and/or substitute the court's judgment for that of the jurors whose primary function is to issess damages. So v. Wing Tat Realty, Inc., 259 A.D.2d 373, 374, 687 N.Y.S.2d 99] 101 (1°1 Dept., 1999). I After a review df the trial record and appropriate appellate precedents, this court II finds that the jury award for past pain and suffering deviates materially from what would I be reasonable compe~sation and is inadequate. This Court grants plaintiff's motion for additur to increase theijury's past pain and suffering award of $15,000.00 to $75,000.00 ! resulting in an aggregate pain and suffering award of $150,000.00 ($75,000.00 for past I i pain and suffering andl$75,000.00 for future pain and suffering) and which constitutes I reasonable compensation under these circumstances. See Lepore v. City of New York, I I 258 A.D.2d 288, 685 N.Y.S.2d 52 (1st Dept., 1999)(pre-apportionment past pain and suffering award of $20,!ooo increased to $75,000.00 and a future pain and suffering award of "O" increased ro $10,000.00 for a trimalleolar right ankle fracture); Sherry v. North Colonie Central School District, 39 A.D.3d 986, 833 N.Y.S.2d 746 (3rd Dept., I -4- [* 5] 2007)(citing to Lepo'ie, supra, and affirming an aggregate pain and suffering award after I I re-trial of $100,000.qo for a trimalleolar left ankle fracture); and Condor v. City of New York, 292 A.D.2d 332, 738 N.Y.S.2d 587 (2"d Dept., 2002), Iv. to app. den. 98 N.Y.2d 607, 746 N.Y.S.2d 691 (2002)(past pain and suffering award of $75,000 found to be reasonable for a trimalleolar right ankle fracture). See also, Ordway v. Columbia I County Agricultural 5:ociety, 273 A.D.2d 635, 709 N.Y.S.2d 691 (3rd Dept., 2000). As noted earlier, plaintiff found the past loss of earnings award to be fair and I reasonable and ostensibly calculated to cover only a year's worth of lost income for a magazine distribution job which lasted only two (2) days. Plaintiff also did not question the jury's decision no~ to make any award for future Jost earnings. The jury was free to consider the fact that Mendez's treating physician cleared plaintiff for work at least two ! years before the trial ~nd plaintiff chose to do nothing. The jury was also free to question plaintiff's cre6ibility and reasonably found that plaintiff "substantially [albeit, not completely] recovlred from the effects of the trauma by the time of trial. .. " Lyerly I v. Madison Square Garden, 3 Misc.3d 128(A), 787 N.Y.S.2d 678 (A.T., 1s1 Dept., ! 2004 )(bracketed matt~r added). I Accordingly, except for additur to increase the past pain and suffering award I j from $15,000.00 to $75,000.00, this court otherwise finds that the jury fairly interpreted the evidence and gran~ed a future pain and suffering award of $75,000.00 which is I consistent with the weight of the record evidence and did not deviate materially from I I what would be reason~ble compensation. I I 1 -5- [* 6] For the foregd ing reasons, this court grants plaintiffs motion to set aside the jury 1 verdict on damages ~or past pain and suffering and grants a new trial only on this damage issue unless, within ten days after service of a copy of this Decision and Order with notice of entry, Village Grill executes a stipulation agreeing to increase the jury award for past pain apd suffering from $15,000.00 to $75,000.00 resulting in a preapportionment, aggregate pain and suffering award of $150,000.00 ($75,000.00 for I I past pain and sufferin;:g and $75,000 for future pain and suffering). This constitutes this court's Decision and Order. Courtesy copies of same have I been provided to cou~sel for the parties. I DATED: New York, New York July3, 20071 Lsz_~ HON. MARTIN SHULMAN, J.S.C. -6-

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.