Miller v Camelot Communications Group, Inc.

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Miller v Camelot Communications Group, Inc. 2021 NY Slip Op 31804(U) May 27, 2021 Supreme Court, New York County Docket Number: 150387/2015 Judge: Mary V. Rosado 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] INDEX NO. 150387/2015 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 05/28/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENL PART HON. MARY V. ROSADO IAS MOTION 26 Justice ---------------------------------------------------------------------------------x LINDA MILLER. INDEX NO. 150387/2015 MOTION DATE Plaintiff, MOTION SEQ. NO. --~0~0~2~-- - vCAMELOT COMMUNICATIONS GROUP, INC, CORANET CORP, MANUEL ALMONTE DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X The following e-filed documents. listed by NYSCEF document number (Motion 002) 86, 87, 88, 89, 90, 91, 92, 93. 94, 95, 96, 97. 98. 99, 100, 101, 102, 103. 104, 105.106, 107.108, 109, 110, 111, 112. 113, 114, 115 SET ASIDE VERDICT were read on this motion to/for Defendants C'amelot ('01nmunications CJ-roup, Inc. (('amelot). ('oranet ('orp. (Coranet), and Manuel V. Almonte (Aln1onte) move, pursuant to CPl.R 4404 (a), fOr an order setting aside the January 31. 2020 jur) ,·erdict. scheduling a nc\\ trial, and/or scheduling this n1atter for a collateral source and Article 50-B hearing, pursuant to CPLR 4545 and 5041. The motion was referred to this court by the I Ion. Lisa S. Headly because this court presided over the trial. ·rhis action arises fron1 an accident in '-'·ihich plaintiff \vas injured on December 13. 2014. \Vhen she \Vas struck by a van driven by Almonte, \Vhile she \Vas crossing a street on a green traffic light. .A.lmontc. at that time. \\'as e1nployed by Camelot. Plaintiff brought suit and. after discovery. a trial co1nn1enccd on January 21, 2020. On January 31, 2020, the jury awarded plaintif1' a total of 54.030.000. including $1, 759.000 for past pain and suffering: $1,250.000 for future pain and suffering; $30,000 for past medical expenses; and$ J ,000,000 for future medical expenses, anticipated to be incurred over 22 years. Prior to the com1ncncement of this la\vsuit, 15038712015 MILLER, LINDA vs. CAMELOT COMMUNICATIONS Motion No. 002 1 of 9 Page 1 of 9 [* 2] INDEX NO. 150387/2015 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 05/28/2021 Plaintiff previously brought suit after she suffered injuries to her head and neck \vhen an usher at Lincoln Center opened a door onto her (the ''Lincoln ('enter action"). DISCUSSION Pursuant to ('PLR 4404(a), the C'ourt has discretion to ·'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 \av.· or it may order a nc\Y trial of a cause of action or separable issue "'·here the verdict is contrary to the \\'eight of the evidence !or] in the interest of justice .... " A 1notion to set aside the verdict on these grounds "\:ncornpasscs errors 111 the trial courf s rulings on the adn1issibility of evidence, mistakes in the charge. misconduct. ne\.v\y discovered evidence, and surprise" (Russo v Leval. 143 AD3d 966, 968 [2d Dept 2016J). ·rhis statutory pro\.'ision is "predicated on the assurnption that the Judge \vho presides at trial is in the best position to evaluate errors therein" and the trial court must decide "'whether substantial justice has been done. \\'hether it is likely that the verdict has been affected and 1nust look to his l or her) ovvn com1non sense. experience and sense of fairness rather than to precedents in arriving at a decision·· (A1icalle.fr :\Iiehle (:o., Div. (~f/Vliehle-(;oss Dexter. Inc., 39 NY 2d 376. 381 I1976] [internal quotation marks and citations omitted]: .'-:mith v RudolJJh. 151 .1\J)Jd 58. (12-63 I 1st !)ept 2017 j). Such power granted ··upon a court to order a new trial is discretionary in nature'" (:\-1icltl!efat 381 ). It is well-settled that a jury verdict for the plaintiff ''should only be set aside, based on the \\'eight of the evidence. \.\-here the e\'idcnce so preponderates in favor of the defendant that it could not have been reached on any fair interpretation of the evidence"' ( Yammoto v (.'arfe(/ ('ab ( 'orp., 66 1\DJd 603, 604 f 1st Dept 2009] [internal quotations omitted]). In determining v.-·hether to set aside the \.'erdict. the court must engage in ''a discretionary balancing of1nany factors., 15038712015 MILLER, LINDA vs. CAMELOT COMMUNICATIONS Motion No. 002 2 of 9 Page 2 of 9 [* 3] INDEX NO. 150387/2015 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 05/28/2021 (McDermott v Coffee Beanery, Ltd, 9 AD3d 195, 205 [!st Dept 2004]). "[T]he court must cautiously balance the great deference to be accorded to the jury's conclusion ... against the court's own obligation to assure that the verdict is fair" (id. at 206 {internal quotations omitted]). The discretionary nature of this inquiry does not imply that the court can freely reject any verdict that is unsatisfactory or with \.vhich it disagrees, as this would "unnecessaril)' interfere with the fact-finding function of the jury to a degree that amounts to an usurpation of the jury's duty" (id. [internal quotations omitted]). "In the absence of indicatio11s that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict" (McDonald v. 450 Wes/ Side Partners. LLC, 70 AD3d 490, 491-492 [!st Dept 2010], citing Nicas/ro v. Park, 113 AD2d 129, 133 [2d Dept 1985]). Moreover, ifthe verdict is set aside and an award of judgment entered in favor of the unsuccessful party, it would require the court to determine on its own the outcome of the case. Since this \.vould deny the parties the opportunity to resubmit their cases to the jury, the burden on the party moving for such relief is very high (lv"icastro v. Park, 113 AD2d 129, 132 [2d Dept 1985]). Defendants' principal argument, here, is that this court erred when it precluded defendants from introducing a transcript of plaintiffs testimony in the Lincoln Center action during the trial of this action. It is undisputed that defendants failed to produce either the deposition transcript or the IME questionnaire from the Lincoln Center action in discovery here. Clearly, a trm1script of a party's deposition in a prior action is a 'party statement," within the meaning ofCPLR 3101 (e), which provides that "[a] party may obtain a copy of his own statement'' (Zarate v j\;ff. ,')inai Hosp., 142 Misc 2d 426, 428 [Sup Ct, NY County 1989J; see also Ancona v }let Realty I folding Trust L'o.. 153 Misc 2d 946, 952 150387/2015 MILLER, LINDA Motion No. 002 vs. CAMELOT COMMUNICATIONS 3 of 9 rs up Ct, Nassau Collllty Page 3 of 9 [* 4] INDEX NO. 150387/2015 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 05/28/2021 1992] [statement ''made pursuant to an examination before triat:· in a different action, is a "party staten1enf']). J !ere. defendants failed to produce the transcript in the course of discovery and then sought to use it at trial. Detendants no\v argue that plaintiff should have moved to compel production of the transcript (NYSCEF Doc. No. 97, 4), that she had a copy, obtained during the course of the earlier action (NYSCEF l)oc. No. 109. 2-3 ), and that. if she did not. she could easily have obtained a copy (ill at 3). ·rhe scheduling order in this case (l~luth. J.) required all parties to exchange statements of opposing parties. See NYSCE}' Doc. No. 22. Defendants failed to con1ply \\·ith that order. Indeed, the) failed to ackno\vledge their possession of the transcript until they atten1ptcd to use it during their cross examination of plaintiff at trial. This court sees no error in having precluded defendants from seeking a tactical advantage made possible by their deliberate failure to coinply \\·ith an order of the court. That preclusion \Vas \Veil \Vithin the ambit of ('Pl.R 3126 (2), \\'hich provides, in relevant part. that \\ hcn 1 ''any pa11y .... willfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article. the court n1ay make such orders \Vith regard to the failure ... as are just. among them ... an order prohibiting the disobedient party fron1 ... producing in evidence designated things or items of testin1ony l)efendants also argue that both the verdict sheet and the court's jury instructions \\'ere flawed. These argun1cnts are related, both to each other and to defendants' argwnent about preclusion. 1-hcy will be discussed in turn. To\\·ards the end of the trial, counsel for defendants requested a change from the verdict sheet that they had initially proposed. 'l'he court declined that request and issued a verdict sheet 150387/2015 MILLER, LINDA vs. CAMELOT COMMUNICATIONS Motion No. 002 4 of 9 Page 4 of 9 [* 5] INDEX NO. 150387/2015 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 05/28/2021 largely Indistinguishable from dt~fcndants · initial rt::qnt::st. ·rhe verdict sheet asked the jury to ans\.vcr the follo"ving questions: Questi-on l; "\\/us defendant Vfanucl V. Almonte negligent?" Ques!ion 2: "Was defendant tvtanuel V. Aln1onte"s negligence a substantial factor in causing_ the accidc-:11 that occurred on Uecc1nber I'.\, 2014·-;·· Queslio'.1 6: ''State the an1<•unt of damages, if any. sustained by plainti11' f.jndu Mt1ler tOr past paln and suffering ... from the date of the accident on December 13. 20 l 4 up to QuestiiJn 7· "Strne the a1nount ()f damages, if any. which will fairly and justly ..:01npcnsa1e :he pluintiffl.inda f\1illcr for pain and suffering ... from the date of your verdict to the 1in1e plaintifT e<)uld be expected to liYe.'· Defendants argue that the second question impennissibly blends the issue of liability \.vith that of datnagt:s. ()bviously, hovveYer. the jury \.vould reach the second question only if it had already anS\\"ercd the t!rst question in the affirmative. J)efcndants also argue. citing Rod,r;er.1· r :\'eir rork (;ir_r J"r .4uth. (70 Af)3d 917 . 920 [2d [)cpt 20101). among other cases. that claims that an ac4..·ide-nt exacerbated a prior 1njury n1ust be SJX-~ially· ph.·aJed and proved. and that the verdict sheet tailed tn state that principle. Defendants appear to believe that plainti!l" should have conte11dcd U1at the subject acclde-111 exacerbated ihc injuries that she suffered in her earlier accident. Plaintiff made fl{) such claim, ho~ever_ [)efendunts' argument ahout the jur;- charge is si1nilar\~- circulac rJcfendants contend that the (;harge ·'failed to mention th~1t the plaintiff can t}nly- re-cover f<>r those injuries caused :..olc!y by the subject accident." t\YS('J::F Doc. ;-.Jo. 109 ~ 38. To be sure, defendants atten1pted to introduce evidence of plaintiff's prior accident. but. as dis<.:ussed above. the) \Vere precluded 1503t!1/2015 MILLER. LINDA '<'S, CAMELOT COMMUNICATIONS Motion No_ 002 5 of 9 Page -5 of9 [* 6] INDEX NO. 150387/2015 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 05/28/2021 from introducing a transcript of plaintitl~ s deposition in the J,incoln ('enter action. Plaintiff, plainly. <lid not clain1 that she could recover for any injuries that had not been caused by the subject accident. Moreover. as defendants ackno\vledge. the jury \Vas specifically charged that "[i]fyou decide that defendants are liahlc, plaintiff is entitled to a sum of money which vvill justly and fairly co1npensate her for any injury, disabilit)' and conscious pain and suffering to date caused hy defendants." NYSCEF Doc. No. 99 ~I 50 (quoting ·rrial 'J"ranscript at 1053). 'rhere could be no plainer statement that any a\vard of dan1ages to plaintiff had to be based on, and limited to. the injuries that she sustained in the subject accident. [)efendants also argue that an additional charge (Vl·J, 1111) that had been given to the jl1ry after it began deliberations, could ha\'e been confusing. ~otably. ho\vever. defendants do not contend that the _jury's verdict was against the weight of the evidence. Initially, before the jury began deliberating, the court charged that the jury could find that plaintiff had violated Vehicle and Traffic l,aw (V'l'I,) §1152 (a), which provides, in relevant part: "!~very pedestrian crossing a road\vay at any point other than \Vithin a marked cross\.valk or vvithin an unmarked cross\.valk at an intersection shall yield the right ofvvay to all vehicles upon the road\.vay[,]'' or. ifthe jury found that plaintitl'v.:as \vithin a crossv.'alk at the time of the accident, "You must consider section 11S1 of the [VI'L], which provides. subsection (a) ·\\'hen traffic control signals arc not in place or arc not in operation, the driver of the vehicle shall yield the right of way ... to a pedestrian crossing the roadway \.Vi thin the crossv..:alk ... 150387/2015 MILLER, LINDA vs. CAMELOT COMMUNICATIONS Motion No. 002 6 of 9 Page 6 of 9 [* 7] INDEX NO. 150387/2015 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 05/28/2021 ·rri:il t:anscript at 1042~49. J>laintiff, ho·\vever. had testified that she wa"> in a cross\\·alk a\ the tirnc of the accident. and that traffic signals \~:ere operating properly. 1\ccordingly. the cout1 gave this additional charge: .. in this .::ase. t11ere ;_._no dispute that: the intersection .. \\as controlled by tr.tfficcontrol dc·viscs for hnth motorists and pedestrians. 1 am tlO\.\' reading lo )"OU a scc11on fron1 the [\1l'L ], sccti(Hl 1 l l 1: · \\'hcnever traffic is controlled by traffic-contrrll signals ... only the colors green, yellow and red shall be used and :said lights shall indicate nnd apply to drivt.•rs 1.1f vehicles and to pedestrians as follov.·s: Subsection (a) (I ) "(irccn Indications.. : ·rraffic, except pedestrians. 1lu.:ing a steady. circular green signal. may- proceed straight thrt)ugh or turn letl unless a sign at such place prt)hibits either such turn. Such tratlic. including v.·hen turning right or left. shul ! yield the right of \\·a;· to l)ther traf!ic la\.\·full) \Vithin the intersl'ction or an adja;;:cnt crossv•/alk at the tin1e such signal !s exhihited.' And then \Ve get tt! section [sic] (3): ·unless otherwise directed by a pedestriancorltrol s.ignai as provtdcd u1 :.ection 1112, pedestrians facing any steady green signal, except \vl1en the soh: green signal is a turn arrov.-. maJ' rt)ad,vay \vi thin any marked nr unmarked proc~ed aert)ss the cros~\valk.' ... So you are to deliberate a11d if you have any que'ltions, of course, you kno\.\' \\hat to do.·· ·rrlal transcript 1097-98. [)cfendants spectt!ate that the jury tould have been confused by this additional charge, but they fail to offer any indication of the nature of such possible confusion. Indeed. defendants 1S-038112ll15 MILLER, LINDA vs. CAMELOT COMMUtflCATIONS Moticn No. 002 7 of 9 Page 1 of9 [* 8] INDEX NO. 150387/2015 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 05/28/2021 are reduced to arguing that p!aintiJl' cannot prove that the jury was not contUsed. \vhit:h is nt>t a basis to vacate a \·crdict. ,\'ce NYSC:l~f Doc. '\o. 109 •· 41. l"inally, defendants argue incorrectly that the jury's verdict \.vas not supported by the evidence adduced at trial. Specit1ca!ly. they point out that plaintiff's expert \Vitncss i:estified that plaintiff was likely to incur approxin1atel.Y $825,000 in future m<...xiica! expenses and that the jury appears ll> have r(•unded this 11gurc to $ ! ,(}Oll,000. Ho\vever, it sccn1s that defCndanL'>, in their calculations, omitted cert<iin services that plaintitl~s e.xpc11 \Yitness testified that plaintiff v.ou!d nci.!<l and also 1niscalculatc<l the total eosts of services in their papers. Plaintiffs cxpeti "''itncss provided a range of costs .and frequencies t>f visits for certain services and even just taking the !ovver numbers in those categ,}ries \voul<l bring the am<,unt over $1,000,000 in total costs. 'l'hus, the j·Jf)' 's determination as to the fl\Vard of future rneJical expenses V;·as supported b.Y the res1imony and documentation adn1ittcd into evidence.. \N'itl1 respect to the c-0llalcra! source reduction. the .court will pnJvide the parties a reasonable opporiunity to stipulate ~ts to che appropri;itc collatcrn! sour-.:e reduction in the total a\cvard, if any, and to agree upon the form of a structured judgment pursuant to CJ>LR Artie Ii.: 50- B. inasrnuch as the award for future damages exceeds $250.0(>() tsee CPl.R 5041 le]). CONCLUSION 'fhe court has consldi.!red all other arguments and finds then1 to be \vithout tnerit. T'he court \viii thus provide the partie"i \\."ith an opportun11y to stipulate as to the appropriaie C(Jl!atcral source reductions in the total a\vard. if an:. and !\}agree upon the f<>rm of a slructured judgn:cnt pursuant to ('JlJ .R article 50-B. inasmuch as the av.·ard for future darnages is in execs:-, ofS250,000 (see ('PLR 5041 ). :\ny requested relief not e:-.pressly addressed in this 1Jrdcr is denied. iSOlB7/1U15 Ml!.LE:R, LINDA\£$_ CAMELOT COMMUNlCATlONS ¥otlon No_ 002 8 of 9 Page3of9 [* 9] INDEX NO. 150387/2015 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 05/28/2021 .Acc0rdingly. it is herchy ORIJl~RED that the 01otion of detendants Camelot C:t}mmunications (froup. Int:., C~oranet Corp,. and !'v1anuel V. Alrr1ontc to set aside the January 31, 2020 jury verdict and to schedule a ne\v trial is denied subject to the conditions listed above: and it is further ORl)l2RiZD ti1at if the parties do nt)t file a stipulatit>n as to tbc amt)unt of any collateral wur\.'.C sct-011· as set forth l1t'rcin v.-lrhin 3l1 days, the court ""·ill schedule a collateral st>urce hearing pursuant to ('PJ.R. 4545: and it is further ()l{f)l'.RED that plaintiff shall serve a copy of this dccisi\)11 and order vvith notice of entry upon each <lcfenda11! herein. This constitutes the lJecisiun and Order of the court. 5127121 DATE CHECK ONE APPLICATION CHECK IF APPROPRIATE: MAR ~ 15038712-015 MILLER, UNOA CASE DISPOSED GRANTED D V. ROSADO, J.S.C, NON.flNAl DlSPOSITlON DENIED GRANTED IN PART $£111.E OROEA: SUBMIT OOOER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT vs. CAMELOT COMMUNICATIONS Motion No. 002 9 of 9 D D OTHER REFERENCE