Zimnoch v Bridge View Palace, LLC

[*1] Zimnoch v Bridge View Palace, LLC 2008 NY Slip Op 50594(U) [19 Misc 3d 1107(A)] Decided on March 25, 2008 Supreme Court, Kings County Schack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through March 25, 2008; it will not be published in the printed Official Reports.

Decided on March 25, 2008
Supreme Court, Kings County

Andrzej Zimnoch and Maria Zimnoch, Plaintiffs,

against

Bridge View Palace, LLC, Defendant.



47730/03



Samuel Lurie by William Ryan, Esq.

NY NY

Defendant:

Schindel Farman Lipsius Gardner Rabinovich LLP

Lorenton Palmer, Esq.

NY NY

Arthur M. Schack, J.

In this construction accident case, defendant Bridge View Palace, LLC, moves: pursuant to CPLR § 4404 (a), to set aside the June 15, 2007 damages jury verdict because of errors made by the Court, and grant a new damages trial, or in the alternative reduce the jury's award because it was contrary to the weight of the evidence, and, pursuant to CPLR § 4545, direct a collateral source hearing. The total verdict awarded plaintiffs, Andrzej Zimnoch and Maria Zimnoch, was $1,588,000.00 ($300,000.00 for Mr. Zimnoch's past pain and suffering; $850,000.00 for Mr. Zimnoch's 32 years of future pain and suffering; $44,000.00 for Mr. Zimnoch's past medical expenses; $364,000.00 for Mr. Zimnoch's 32 years of future medical expenses; $30,000.00 for Mrs. Zimnoch's past loss of her husband's services and society; and $0.00 for Mrs. Zimnoch's future loss of her husband's services and society). Further, defendant contends that the Court erred on two grounds: by not allowing defense witnesses to testify about Mr. Zimnoch's back pain complaints prior to the November 10, 2003-accident, and admitting into evidence MRI reports of a non-testifying radiologist. Defendant's motion is denied. [*2]

Plaintiff, by cross-motion, moves to extend the Court's restraining orders, which prohibits defendant, Bridge View Palace, LLC, and its principals, including, but not limited to Mr. Aron Karpelyus, from conveying, assigning, or otherwise further encumbering the property at which the plaintiff's accident took place, 120 South Second Street, Brooklyn New York. Plaintiffs' motion is granted.

Background

Plaintiff Andrzej Zimnoch was injured on November 10, 2003, when he fell from a height while doing construction work at the 120 South Second Street property, which was owned, operated, managed and maintained by defendant, Bridge View Palace, LLC. The jury, at the conclusion of the first trial in this matter, a unified trial in which I presided, determined, in its November 27, 2006-verdict, that defendant was liable for its violation of Labor Law § 240 (1), by failing to provide plaintiff Mr. Zimnoch with proper safety equipment. In my March 23, 2007 decision and order, I sustained the jury's verdict on liability, but set aside the damages award as against the weight of the evidence. I ordered the parties to appear on June 4, 2007 for jury selection and a subsequent damages trial. The jury was selected on June 4, 2007, and the trial was conducted on June 7, 11, 12, 13, 14 and 15, 2007.

At the second trial on damages, Mr. Zimnoch's treating orthopedist, Dr. Jeffrey S. Kaplan, testified, inter alia, that his reading of March 12, 2004 MRI's of plaintiff's cervical and lumbar spines, showed that Mr. Zimnoch sustained as a result of the November 10, 2003-accident: herniated discs with impingement at C5-C6, C6-C7, with foraminal narrowing and spinal cord impingement, causing radiating pain to plaintiff's upper extremities; disc herniations at L4-L5, and L5-S1, impinging on the nerve root; and, a disc bulge at L3-L4 impinging upon the thecal sac. The MRI films were introduced into evidence, without opposition by defense counsel [trial transcript, p. 125]. Dr. Kaplan, in his direct testimony, showed the MRI films to the jury and testified as to his findings [trial transcript, pp. 125 -132].

Defense counsel cross-examined Dr. Kaplan on his findings, including his personal interpretation of the MRI films. Dr. Kaplan, in his cross-examination, testified, "[m]y conclusion that the MRI's show herniated discs is an objective finding. The MRI's show a herniated disc. The conclusion that those are related to the accident, again, are based on a reasonable degree of medical certainty, which what I know about the patient, what I know about his complaints and my findings on physical examination [trial transcript, p. 293, lines 3 - 9]." Further, the following colloquy [trial transcript, p. 305, lines 1 - 9, and lines 14 -19] regarding the MRI's took place between Dr. Kaplan and defense counsel:

Q.You did the MRI's first, correct?

A.That's correct.

Q.The MRI's show a problem at L3, L4, L5 L4, 5, and L5, S1?

A.They show a bulging disc at L3, L4. They show a herniated disc

at L4, L5, and L5, S1. That's what we saw on these MRI films.

and we showed the other day [direct testimony with Dr. Kaplan

reading the MRI's] the presence of a herniated disc at these

two levels . . .

Q.The question is do the MRI's show problems at L3 L4, L4 L5

and L5 S1? Yes or no?

A.Do the MRI's? [*3]

Q.Yes, The MRI's?

A..The MRI's show disc abnormalities at L3 L4, L4 L5, and L5

S1, yes.

Dr. Kaplan, in his testimony, noted that Mr. Zimnoch had undergone a series of three epidural injections to the lumbar spine and three epidural injections to the cervical spine. In addition to plaintiff suffering from constant radiating neck pain and stiffness, plaintiff also experienced pain and weakness in both shoulders and wrists. Dr. Kaplan testified that these injuries are permanent in nature. Further, Dr. Kaplan opined that all of Mr. Zimnoch's symptoms and injuries that he described were a direct result of plaintiff's November 10, 2003-accident. Regarding future treatment, Dr. Kaplan testified that Mr. Zimnoch will require another series of cervical and lumbar epidural steroid injections, and that he will need to continue with physical therapy at least once a week, for the rest of his life.

Defendant contends that the Court erred in not allowing defense witnesses to testify about Mr. Zimnoch's complaints of back pain before the accident. Actually, Mr. Karpelyus, the principal of defendant, testified [trial transcript, pages 726 - 731] that plaintiff, prior to the day of the accident, complained to him about an alleged back problem. Then, I sustained plaintiff's counsel's objections to the admission of hearsay evidence by Mr. Kapelyus.

Further, defense counsel alleges that the Court erred by admitting into evidence the MRI reports of a radiologist, Dr. Thomas M. Kolb, who did not testify at trial. The trial transcript is clear that at no time in his testimony did Dr. Kaplan ever refer to Dr. Kolb's reports. Dr. Kaplan's testimony with respect to his review and interpretation of MRI's of plaintiff's cervical and lumbar spine were based strictly upon Dr. Kaplan's own findings and reading of plaintiff's MRI's. During Dr. Kaplan's direct examination, Dr. Kaplan utilized a shadow box and reviewed his own MRI readings with the jury [trial transcript, pp. 125 - 132].

Dr. Kolb's MRI reports were part of Dr. Kaplan's file. Defense counsel, in ¶ 7 of his motion, states that Dr. Kolb's reports were admitted over defense objections. However, an examination of the trial transcript reveals the opposite. Defense counsel, during his cross-examination of Dr. Kaplan, moved into evidence the entire file of Dr. Kaplan, which included Dr. Kolb's reports [trial transcript, p. 314]. After a discussion with opposing counsel about not admitting the report of Dr. Mervyn Lloyd, which was also part of Dr. Kaplan 's file, because Dr. Lloyd wasn't testifying, defense counsel moved again for the entire file of Dr. Kaplan to go into evidence [trial transcript, pp.

321 - 322]. I granted defense counsel's motion to the extent of admitting all of Dr. Kaplan's file, except for the report of Dr. Lloyd. Then, defense counsel objected to granting of his motion to admit Dr. Kaplan's file without the report of Dr. Lloyd. The following exchange took place, at trial transcript, page 322, lines 17 - 25:

THE COURT:I ruled it is in [Dr. Kaplan's file] except for I

granted your motion to the extent to put everything

in but Dr. Lloyd's report.

MR. PALMER [defense counsel]: That wasn't my motion, Judge.

THE COURT:So in other words, you're saying that if I don't

let it all in then nothing goes in.

MR. PALMER:That's exactly that's what I am saying.

The only mention at trial of Dr. Kolb's MRI reports, was an indirect reference to Dr. [*4]Kaplan's file by plaintiff's counsel during his summation. He stated "[w]e know Dr. Kaplan's entire file is in evidence [trial transcript, page 831, lines 9 -10]." Plaintiff's counsel never mentioned Dr. Kolb by name, and referred to the entire file of Dr. Kaplan, including the MRI reports [trial transcript, pages 832-833]. In his summation, plaintiff's counsel spoke extensively about Dr. Kaplan's personal review and interpretation of plaintiff's MRI's.

Defendant asserts that the Court should conduct a collateral source hearing, pursuant to CPLR § 4545, because Mr. Zimnoch's medical expenses are being paid by the New York State Insurance Fund, Mr. Zimnoch's workers' compensation carrier. In opposition, plaintiff's counsel correctly points out that defendant is not entitled to a collateral source hearing, because there is no collateral source when workers' compensation, as in the instant case, asserts a lien.

In their cross-motion, plaintiffs move to have the Court to continue its temporary restraining order of November 27, 2006, which was extended by my orders of March 23, 2007 and June 15, 2007. Plaintiff argues that since defendant has no insurance (its insurance carrier issued a disclaimer) to satisfy a potential judgment, and that the 120 South Second Street premises is the sole asset that can be used to satisfy any potential judgment, the Court must continue to restrain defendant, to maintain the status quo pending a final determination or settlement of the instant action. My November 27, 2006 order, after the first trial, stated:

The Court finds plaintiffs may suffer immediate and irreparable harm

if Aron Karpelyus conveys, assigns or otherwise encumbers the property

at 120 South 2nd Street, Brooklyn, NY.

Therefore, pursuant to CPLR § 6301 and § 6313 the Court

grants a temporary restraining order to plaintiffs . . . Mr. Aron Karpelyus

may not convey, assign or otherwise encumber his interests in the

property at 120 South Second Street, Brooklyn, NY, owned by

defendant Bridge View Palace, LLC.

My March 23, 2007 order extended the November 27, 2006 order "to the date of the verdict or settlement in the new trial." After the jury rendered its verdict in the second trial, on June 15, 2007, the parties executed a so-ordered stipulation, extending the prior restraining order "until this Court's decision on all post trial motions by the parties."

Discussion

The power of a court to set aside a jury verdict and order a new trial is

discretionary. It is codified in CPLR Rule 4404 (a), which states:

Motion after trial where jury required. After a trial of a cause

of action or issue triable of right by a jury, upon the motion of any

party or on its own initiative, the court may set aside a verdict or

any judgment entered thereon and direct that judgment be entered in

favor of a party entitled to judgment as a matter of law or it may order

a new trial of a cause of action or separable issue where the verdict is

contrary to the weight of the evidence, in the interest of justice or where

the jury cannot agree after being kept together for as long as is deemed

reasonable by the court

This broad power is invoked only when the jury verdict is against the weight of the evidence. The Court of Appeals, in Cohen v Hallmark Cards, Inc., (45 NY2d 493, 499 [1978]), [*5]held that, "the question whether a verdict is against the weight of the evidence involves what is in large part a discretionary balancing of many factors (see Mann v. Hunt, 283 App Div 140)." In applying the Cohen v Hallmark Cards, Inc. discretionary balancing, the Court, in Nicastro v Park, (113 AD2d 129, 133-134, [2d Dept 1985]), instructed:

The fact that determination of a motion to set aside a verdict

involves judicial discretion does not imply, however, that the trial

court can freely interfere with any verdict that is unsatisfactory or

with which it disagrees. A preeminent principle of jurisprudence in

this area is that the discretionary power to set aside a jury verdict and

order a new trial must be exercised with considerable caution, for in

the absence of indications that substantial justice has not been done,

a successful litigant is entitled to the benefits of a favorable jury verdict

Fact-finding is the province of the jury, not the trial court, and a court

must act warily lest overzealous enforcement of its duty to oversee the

proper administration of justice leads it to overstep its bounds and

"unnecessarily interfere with the fact-finding function of the jury to a

degree that amounts to an usurpation of the jury's duty." (Ellis v Hoelzel,

57 AD2d 968; accord, Zolli v. Dubois, 88 AD2d 951; Durante v.

Frishling, supra [81 AD2d 631]; Facteau v. Wenz, supra [78 AD2d

931]). This is especially true if a verdict is contested solely on weight

of the evidence grounds and interest of justice factors have not intervenedto flavor the judicial response to the motion. Absent such complications,

the challenge is directed squarely at the accuracy of the jury's fact-findingand must be viewed in that light. [Emphasis added]

(See Ahr v Karolewski, ___AD3d___, 2008 NY Slip Op 01687 [2d Dept Feb. 26, 2008]; Taino v City of Yonkers, 43AD3d 401 [2d Dept 2007]; Kaplan v Miranda, 37 AD3d 762 [2d Dept 2007]; Romero v Metropolitan Suburban Bus Authority, 25 AD3d 683 [2d Dept 2006]; Pedras v Authentic Renaissance Modeling and Contracting, Inc., 16 AD3d 567, [2d Dept 2005]; Abenante v Star Gas Corporation, 13 AD3d 405 [2d Dept 2004];

Kiley v Almar, Inc., 1 AD3d 570 [2d Dept 2003]).

In Hernandez v Carter and Parr Mobile, Inc., (224 AD2d 586 [2d Dept 1996]), the Court instructed that "it is beyond cavil that the determination of the jury which observed the witnesses and the evidence is entitled to great deference." Further, "[g]reat deference is accorded to the fact-finding function of the jury, and determinations regarding the credibility of witnesses are for the jury, which had the opportunity to see and hear the witnesses." ( Cicillini v City of New York, 15 AD3d 522 [2d Dept 2005]). (See Clarke v Limone, 40 AD3d571 [2d Dept 2007]; Speciale v Achari 29AD3d 674 [2d Dept 2006]; Filipowich v Tavano, 23 AD2d 519 [2d Dept 2005]; Enright v Byrne, 20 AD3d 549 583 [2d Dept 2005]; Zweben v Casa, 17 A3D 583 [2d Dept 2005]; Shaw v Board of Educ. of City of New York, 5 AD3d 468 [2d Dept 2004]; Bendersky v M & O Enterprises Corp., 299 AD2d 434 [2d Dept 2002]; Aprea v Franco, (292 AD2d 478 [2d Dept 2002]; Yacobellis v National Amusements, Inc., (289 AD2d 485 [2001]).

The jury, in the instant case, observed the witnesses, measured their credibility, and weighed the evidence. This Court is mindful of the admonition in Shaw v Board of Educ. of City of New York, supra at 468, that a "jury verdict is entitled to great deference and should be set [*6]aside as against the weight of the evidence only when it could not have been reached on any fair interpretation of the evidence." (See Piatek v New York City Transit Authority, 14 AD2d 685 [2d Dept 2005]). This court finds that in the instant case the jury had a rational basis for its verdict in favor of plaintiffs. It cannot find any reason to set aside or reduce the jury's verdict or in the alternative order a new trial. (See Lolik v Big V Supermarkets, Inc., 86 NY2d 744 [1995]; Rhabb v New York City Housing Authority, 41 NY2d 200 (1976); Shoecraft v BBS Automotive Group, Inc., ___ AD3d ___, 2008 NY Slip Op 01739 [2d Dept Feb. 26, 2008]; Barnett v Schwartz, 47 AD3d 197 [2d Dept 2007]; Pollack v Klein , 39 AD3d 730 [2d Dept 2007]; Tapia v Dattco, Inc., 32 AD3d 842 [2d Dept 2006]; Cicalese v Myles A. Carter, D.D.S., P.C., 8 AD3d 523 [2d Dept 2004]; Dhanessur v Bugia, Inc., 4 AD3d 499 [2d Dept 2004]).

The jury award to Mr. Zimnoch of $300,000.00 for past pain and suffering and $850,000.00 for future pain and suffering does not deviate materially from similar cases. It is clear that the jury had a rational basis for its award. There are damage awards in other cases that are consistent with the instant case. In Lohar v City of New York (304 AD2d 624 [2d Dept 2002]), plaintiff had herniated discs at C3-C4, C4-C5 and C5-C6. The Appellate Division allowed $800,000.00 for past pain and suffering and $1,300,000.00 for future pain and suffering. In Crapazano v County of Nassau (272 AD2d 363 [2d Dept 2000]), plaintiff sustained multiple herniated discs in an automobile accident. Plaintiff treated conservatively and no hospitalization occurred. The Appellate Division reduced the jury award to $300,000.00 for past pain and suffering and $600,000.00 for future pain and suffering. In Wimbush v New York City Transit Authority, (305 AD2d 486 [2d Dept 2004]), plaintiff sustained herniated discs at C3-C4, C4-C5 and C5-C6 with impingement. She spent one week in the hospital and was out of work for nine months. The Appellate Division sustained the jury award of $300,000.00 for past pain and suffering and $500,000.00 for future pain and suffering, holding that "[t]he damage awards were not excessive."

The proof of Mr. Zimnoch's past and future medical expenses was substantiated by the uncontroverted evidence. Dr. Kaplan testified that the treatment rendered to Mr. Zimnoch in the past, and what will be required in the future, is medically necessary. He testified to the costs of treatment and medication. Plaintiff introduced into evidence certified bills for services rendered of $44,761.00 in past medical services. The jury awarded $44,000 for past medical expenses. Dr. Kaplan testified that future medical expenses, including weekly physical therapy sessions, periodic cervical and lumbar epidural injections, and medication for Mr. Zimnoch's life expectancy would total $372,000.00. The jury awarded Mr. Zimnoch $364,000.00 for future medical expenses for the next 32 years.

Defendant argues that the Court refused to let defendant's owner, Mr. Karpelyus, testify about conversations he had with Mr. Zimnoch about Mr. Zimnoch's back pain prior to the accident. The jury heard Mr. Karpelyus testify that Mr. Zimnoch previously told him about back pain. I did not allow Mr. Karpelyus to present hearsay testimony. This was not an improper evidentiary ruling that tainted the jury verdict. That the jury chose not to give credence to Mr. Karpelyus was reached on its fair interpretation of Mr. Karpelyus testimony. (Langhorne v County of Nassau, 40 AD3d 1045 [2d Dept 2007]; Campbell v Crimi, 267 AD2d 343 [2d Dept 1999]; Gomez v Park Donuts, 249 AD2d 266 [2d Dept 1998]).

Additionally, defendant claims that the admission of Dr. Kolb's MRI reports, as part of Dr. Kaplan's record, warrants a new trial. In support of this, defendant cites Wagman v [*7]Bradshaw (292 AD2d 84 [2d Dept 2002]) and Clevenger v Mitnick (38 AD3d 586 [2d Dept 2007]). Wagman holds that it is error to allow MRI reports into evidence when the MRI films are not in evidence. In Wagman, a treating chiropractor testified about the written MRI report of a non-testifying healthcare professional, and the chiropractor relied on this report for his diagnosis of herniations. In Clevenger, the Court applied Wagman, holding that the admission of MRI reports relied upon by an expert for a diagnosis deprived opposing counsel the opportunity to cross-examine the author of the MRI reports.

In the instant case, unlike Wagman and Clevenger, the testifying expert for plaintiff, Dr. Kaplan, testified to his own reading and interpretation of the MRI's. Dr. Kaplan never referred to Dr. Kolb's MRI reports during his testimony, nor did he rely on these reports. Since no reference to the reports were made, opposing party's right to cross-examine about Dr. Kolb's MRI reports was not triggered. Further, it was defense counsel, during his cross-examination of Dr. Kaplan, who moved to admit Dr. Kaplan's entire file into evidence. Dr. Kolb's reports, never mentioned during the trial, were admitted as part of Dr. Kaplan's file, during Dr. Kaplan's cross-examination. The only reference during the trial to Dr. Kolb's MRI reports was an indirect reference, without naming Dr. Kolb, during plaintiff's summation.

With respect to that branch of defendant's motion for a collateral source hearing, there is no collateral source in the instant case for this Court to consider. Mr. Zimnoch, in his affidavit to cross-motion, points out that he had no medical insurance either prior to or subsequent to his November 10, 2003-accident. All of his medical bills and reimbursement for lost earnings were paid by the New York State Insurance Fund, his employer's workers' compensation carrier. As of June 4, 2007, the State Insurance Fund asserted a lien of $49,700.00 for workers' compensation benefits and $25,772.76 in medical benefits [exhibit F of cross-motion - June 4, 2007-letter from New York State Insurance Fund]. CPLR § 4545 deals with admissibility of collateral source payments. Specifically, CPLR § 4545 (c) states:

c) Actions for personal injury, injury to property or wrongful death.

In any action brought to recover damages for personal injury, injury to

property or wrongful death, where the plaintiff seeks to recover for the

cost of medical care, dental care, custodial care or rehabilitation services,

loss of earnings or other economic loss, evidence shall be admissible for

consideration by the court to establish that any such past or future cost

or expense was or will, with reasonable certainty, be replaced or

indemnified, in whole or in part, from any collateral source such as

insurance . . . workers' compensation or employee benefit programs

(except such collateral sources entitled by law to liens against any

recovery of the plaintiff) . . . [Emphasis added]

Thus, since the State Insurance Fund, Mr. Zimnoch's workers' compensation carrier, is claiming a lien against plaintiff's potential recovery in the instant matter, it does not qualify pursuant to CPLR § 4545 (c) as a collateral source, and a collateral source hearing is not warranted. (Workers Compensation Law [WCL] § 29; Dietrick v Kemper Ins. Co., 76 NY2d 248 [1990]; Granger v Urda, 44 NY2d 91 [1978]; Firmes v. Chase Manhattan Automotive Finance Corp., 2008 NY Slip Op 00449 [2d Dept January 22, 2008]; Kihl v. Pfeffer 47 AD3d 154 [2d Dept 2007]).

Moreover, pursuant to WCL § 29, any money received by Mr. Zimnoch in the instant [*8]action, after the workers' compensation lien has been paid, is credited by the workers' compensation carrier against future payments of any potential workers' compensation benefits. The amount of the proceeds which Mr. Zimnoch may receive from his lawsuit is an offset against future payment of workers' compensation benefits, and, pursuant to WCL § 29, no future payment of workers' compensation benefits will be made until this credit is exhausted. In Miller v Arrow Carriers Corp. (130 AD2d 279, 281 [3d Dept 1987]), the Court instructed:

Workers' Compensation Law § 29 confers two separate rights

on compensation carriers to obtain reimbursement from the proceeds

of third-party recoveries: that of a lien against the recovery for the

amount of benefits disbursed by a carrier (Workers' Compensation Law

§ 29 (1) and the right to offset a claimant's future compensation benefits

by the amount of the claimant's net recovery in the third-party action

(Workers' Compensation Law § 29 [4]).

(See Arena v Crown Asphalt Company, Inc., 292 AD2d 743 [3d Dept 2002]; Nebeltt v Davis, 260 AD2d 559 [2d Dept 1999]; Parmelee v International Paper Co., 157 AD2d 878 [3d Dept 1990]). Therefore, defendant's application for a collateral source hearing and a reduction of Mr. Zimnoch's award for medical expenses must be denied.

Plaintiffs' cross-motion to extend my temporary restraining order, preventing defendant and its principal, Mr. Kapelyus for conveying, assigning, or further encumbering the property at 120 South Second Street is continued until the instant matter

is finally determined or settled. At that time, either side can then move to vacate the temporary restraining order. Since defendant corporation has been disclaimed by its insurance carrier to satisfy any potential judgment in the instant matter, the premises are the sole asset to satisfy any judgment. It is clear that plaintiffs have a meritorious cause of action, as demonstrated by the jury verdict in their favor, the equities balance in plaintiffs' favor, and plaintiffs will suffer immediate and irreparable harm if defendant is permitted to convey, assign, or otherwise encumber the premises. (CPLR § § 6301, 6313; W. T. Grant, Co. v Srogi, 52 NY2d 496, 517 [1981]; City of Long Beach v Sterling American Capital, LLC, 40 AD3d 902 [2d Dept 2007]; Global Option Logistics, LLC v Choice Global Options, Inc., 37 AD3d 407 [2d Dept 2007]; Ginsberg v Ock-A-Bock Community Ass'n, Inc., 34 AD2d 637 [2d Dept 2006]; Schweizer v Town of Smithtown, 19 AD3d 682 [2d Dept 2005]).

Conclusion

Accordingly, it is ORDERED that defendant's motion, pursuant to CPLR § 4404 (a), to set aside the June 15, 2007 damages jury verdict on damages because of errors made by the Court, and grant a new damages trial, or in the alternative reduce the jury's award because it was contrary to the weight of the evidence, and, pursuant to CPLR § 4545, direct a collateral source hearing, is denied; and it is further

ORDERED that plaintiff's cross-motion, to extend the Court's restraining orders, which prohibits defendant, Bridge View Palace, LLC, and its principals, including, but not limited to Mr. Aron Karpelyus, from conveying, assigning, or otherwise further encumbering the property at which the plaintiff's accident took place, 120 South Second Street, Brooklyn New York, is granted until there is a final determination or settlement of the instant action, at which time either party can make an application to this Court to have the temporary restraining order vacated. [*9]

This constitutes the decision and order of the Court.

ENTER

___________________________

Hon. Arthur M. Schack

J. S. C.