Elsawi v Saratoga Springs City Sch. Dist.

Annotate this Case

Download PDF

Elsawi v Saratoga Springs City Sch. Dist. 2018 NY Slip Op 31060(U) April 23, 2018 Supreme Court, Saratoga County Docket Number: 2012-2633 Judge: Ann C. Crowell 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] STATE OF NEW YORK SUPREME COURT COUNTY OF SARATOGA ANISA MONTASSER ELSAWI, Plaintiff, DECISION and ORDER RJI #45-1-2012-1803 Index # 2012-2633 -against- SARATOGA SPRINGS CITY SCHOOL DISTRICT, Defendant - ro,:, APPEARANCES c:::a (J : I';:) 'j."> C'"l ;:::l-- , - ?"~. r ···I fl J:;>: Catherine A. Burkly, Esq. Attorney for Plaintiffs 74 Broad Street Schuylerville, New York 12871 (Ii ::0 · ·- i ~ ~ 2? ::i:::C."::: (.f.\ ~ (".· I:) 0 -< ~ " N Al ~ + r -0 0 c: :z:: _..... .. N N Z r i -·l The Mills Law Firm Attorneys for Defendant 1520 Crescent Road, Suite 100 Clifton Park, New York i2065 > :x :t>~ c: - CD .. F3 C. CROWELL, J. The plaintiff has requested an order of this Court pursuant to CPLR § 4404 to set aside the March 13, 2018 jury verdict award for future damages. The defendant has opposed the motion. The plaintiff contends the Court should increase the $75,000.00 jury award for future pain and suffering and loss of enjoyment of life to $500,ooo.oo. The plaintiff reasons that based upon her life expectancy of 59.2 years and the nature of her damages the increase is justified. The jury awarded the plaintiff $205,000.00 for her past pain and suffering and loss of enjoyment of life. During closing arguments, plaintiffs counsel Page 1 of 4 rrt [* 2] requested an award of $250,000.00 for past pain and suffering and loss of enjoyment of life. Plaintiffs counsel invited the jury to make their own determination in awarding future damages referencing plaintiffs damages and contrasting her life expectancy of 59.2 years to her seven years of pain and suffering and loss of enjoyment of life from the date of her injury to the date of the verdict. "An award of damages is a factual determination to be made by the jury and is accorded deference unless 'it deviates materially from what would be reasonable compensation."' Garrison v Lapine, 72AD3d 1441 [3d Dept. 2010], citingDoviakv Lowe's Home Ctrs., Inc, 63 AD3d 1348, 1353 [3d Dept. 2009]. "The jury's interpretation of the evidence is entitled to considerable deference, and [courts] will not disturb it unless the evidence so preponderates in favor ofthe moving party that the verdict could not be reached on any fair interpretation of the evidence" Albanese v Przybylowicz, 116AD3d 1216 [3d Dept. 2014], citing Olmstead v Pizza Hut ofAm., Inc. [3d Dept. 2013]. The jury's resolution of credibility issues should be accorded the same degree of deference. Vogel v Cichy, 53 AD3d 877 [3d Dept. 2008]. A Court's capacity to disturb a jury's verdict is to be used sparingly. Santalucia v County of Broome, 228 AD2d 895 [3d Dept. 1996]. Future damages for pain and suffering and loss of enjoyment of life can not be quantified by a precise formula. Nolan v Union Coll. Trust ofSchenectady, 51AD3d1253 [3d Dept. 2008). When scrutinizing a jury's future damages award the Court must examine "the nature, extent and permanency of the injuries, the extent of past, present and future pain and the long - term effects of the injury". Vincent v Landi, 123 AD3d 183 [3d Dept. 2014]. There was no medical evidence from which the jury could have found that plaintiffs condition would improve such that her pain, loss of range of motion or scars would be Page 2 of 4 [* 3] completely alleviated, but her loss of range of motion and pain were not quantified, and her scars were not presented to the jury for their examination. Trial testimony indicated plaintiffs stated limitations do not prevent her from working in her desired field of employment - hotel management. She is able to get assistance at work for lifting heavy items or reaching for items that may trigger shoulder pain. She is able to perform all of her activities of daily living. Both medical experts agreed plaintiffs right shoulder may develop future arthdtic changes as a result of her injuries. Neither medical expert indicated if she will experience symptoms or estimated an age they would expect plaintiff to have evidence of such changes with associated pain and limitations. Plaintiffs expert did opine that if arthritis developed and became severe a future surgical debridement may be necessary to alleviate associated pain and limitations. Both experts found the need for a future shoulder replacement a possibility but deemed such an event unlikely. Plaintiff has not presented any jury verdicts in similar cases or specific case law to . support her request for an increased future damages award. Defendant has presented a case where a plaintiff has a similar life expectancy and a shoulder injury albiet with only one surgery to her non-dominant arm where a Court modified an award from zero to $25,000.00 in future damage, the present damages award of $15,000 .00 was unchallenged. Richards v Fairfield, 127 AD3d 1290 [3d Dept. 2015]. Defendant also provided a 2015 Richmond County jury verdict from a damages only trial regarding a similar shoulder injury in which an unchallenged verdict of $25,000.00 was awarded for 38 years of future pain and suffering. Linder lJ Chan, 2015 WL 2450951 [Sup. Ct., Richmond Cty]. Neither case is on all fours with this case but each provides some guidance. Whether a larger damages award could be sustained is not the test, it is whether or not the current award Page 3 of 4 [* 4] deviates materially from what would be reasonable compensation based upon the evidence presented to the jury at trial. The plaintiffs motion fails to provide the Court a sufficient basis to modify the jury verdict for future damages. The plaintiffs motion is denied. Any relief not specifically granted is denied. No costs are awarded to any party. This Decision shall constitute the Order of the Court. The original Decision and Order shall be forwarded to the attorney for the plaintiffs for filing and entry. The underlying papers will be filed by the Court. Dated: April 23, 2018 Ballston Spa, New York ANN C. CROWELL, J.S.C. Papers Received and Considered: Notice of Motion, dated March 23, 2018 Affirmation of Catherine A. Burkly, Esq., dated March 23, 2018, with attached ExhibitsA-B Affidavit of Christopher K. Mills, Esq., sworn to April 11, 2018, with attached Exhibit A Reply Affirmation of Catherine A. Burkly, Esq., dated April 17, 2018 Page 4 of 4

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.