Kurthy v Sands

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Kurthy v Sands 2021 NY Slip Op 33193(U) November 8, 2021 Supreme Court, Nassau County Docket Number: Index No. 600117/2019 Judge: Thomas Rademaker 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. [*FILED: 1] NASSAU COUNTY CLERK 11/08/2021 10:05 AM NYSCEF DOC. DOC. NO. NO. 73 INDEX INDEX NO. NO. 600117/2019 600117/2019 RECEIVED NYSCEF: NYSCEF: 11/03/2021 SUPREME COURT - STATEOF NEW YORK TRIAL/IAS TERM, PART 21 NASSAU COUNTY PRESENT: Honorable Thomas Rademaker Justice of the Supreme Cou:r:t _________________ .,( DIANA KURTHY, Plaintiff(s), -against- indexNo. 600117/2019 Motion Sequence: 003 Submitted: 11/3/2021 DECISION AND ORDER ELAINE SANDS, Defendant(s), _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _x The following papers read on this motion: Notices of Motion/Supporting E,<liibits/Memorartdum ofLaw.,., ... ,.X Affirmation in Opposition .. , .......... , .. ,., ... , ........ , ......... , ........... ,........... X Reply Memorandum ofLaw ..................................................... , ........ X Defendant,ELAINE SANDS (''Defendant''), moves the Court for an Order, pursuant to CPLR § 4404,. setting aside thejuryverdict renderedin favor of the Plaintiff as againstthe weight of the evidence and setting the matter down for a new trial on damages, or in the altema_tive, to reduce the jury's verdict as "excessive/' Th¢ Pl~irttiff opposes this motion~ The;, case at bar involves a motor vehicle vers.lls pedestrian: accidertt that occurred oh December 11, 2018, at the intersection of Mackey Avehu¢ and Maiµ Street .in Pon 1 of 66 [*FILED: 2] NASSAU COUNTY CLERK 11/08/2021 10:05 AM NYSCEF DOC. DOC. NO. NO. 73 INDEX INDEX NO. NO. 600117/2019 600117/2019 RECEIVED NYSCEF: NYSCEF: 11/03/2021 Washington, New York. The trial concerned damages only as the Defendant conceded liability prior to trial. The action wastried before the Court on July 26, 2021 and July 27, 2021, with the jury rendering its verdict on July 28, 2021. The jury awarded the Plaintiff $125,000 for past pain and suffering and $700,000 for future pain and suffering. The Defendant challenges the jury's verdict with respe.ct to future pain and suffering damages,· but· does not challenge the jury's past pain and suffering award. CPLR Rule 4404 provides, in pertinent part: {a) Motion after trial wherejury required. After a trial ofa cause of action orissue triable of right by ajury, upon the motion of any party or on.its own initiative,the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order anew trial of a cc1use of action or separable issue where the verdict is corttrary to the weight of the evidence, in the. interest of justice or where the jury .cannot agree after being kept together for as long as it <leemed reasonable by the court. For the Courtto grant· a motion to set aside the verdict· as ajnatter of law, pursuant to Rule 4404(a) of the CPLR, '<; , .lhe court must conclude that thereis 'simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence at trial' '' (Firmes v Chase Manhattan Automotive Finance Corp., 50 AD3d 18, 29 [2d Dept 2008)). Moreover, ajury verdict should not be set aside as contrary to the weight ofthe evidence ''Unless thejury could not have reachedJhe verdict on any ·fair foterpretation of the evidence';(Nicastro v 2 2 of 66 [*FILED: 3] NASSAU COUNTY CLERK 11/08/2021 10:05 AM NYSCEF DOC. DOC. NO. NO. 73 INDEX INDEX NO. NO. 600117/2019 600117/2019 RECEIVED NYSCEF: NYSCEF: 11/03/2021 Park; 113 AD2d 129,134 [2dDept 1985]). 'i[T]hedeterminatic:mofthejurywhich observed the witnesses and the evidence is entitled to great deference" (Hernandez v Carter & Parr Mobile, 224 AD2d.586, 587 [2d.Dept 1996]). TheDefendant contertds that the jury's award of$ 700,000 in future pain and suffering damages was not in line with the credible proofthat was offered atthe time of trial, and that such award is excessive and deviates from what wot1ld be reasonable compensation for her mJunes, The Defendant acknowledges that the Plaintiff, who is seventy..,three years old, h&d sust&ined five broken ribs· and a fractured clavicle as a result of the accident, but contends that other injury sites and symptoms were not causally related to the accident Th,e Plaintiff has been involved in a prior pedestrian motor vehicle accident, in which she sustained a fracture wrist and herniated discs, il1 which the Plaintiff reported pain conditions to her physicians prior to the accident at bar, and that any testimony that the Plaintiff W&S ·•pa.in free" prior to her accident with the Defendant as not support by the credible evidence introduced at th time of trial. The Plaintiff reported ,severe pain complaints to her pain .management doctor, which predate the accident at bar, but were approximately eighteen months subsequent to a prior motor vehicle pedestrian accident, in which the Plaintiff was sustained a pel vie fracture and disc herniations .to lumbar spine. The Defendant contends that the jury failed to consider the Plaintiffs pre-existing osteoarthritis when considering the loss of range. of motion in .her 3 of 66 [*FILED: 4] NASSAU COUNTY CLERK 11/08/2021 10:05 AM NYSCEF DOC. DOC. NO. NO. 73 INDEX INDEX NO. NO. 600117/2019 600117/2019 RECEIVED NYSCEF: NYSCEF: 11/03/2021 shoulder, did not consider the Plaintiffs pre,.existing carpel tunnel syndrom with respect to her continuing pain complaints, and thatno credible viewofthe evidence would causally link the Plaintiffs pre-existing conditions to her2018 pedestrian/vehicle accident at issue herein. In contrast, the Plaintiff contends that her comminuted clavicle fracture resulted-in a mal urtion, andthat she had limited ttIDge of motion in her left arm, a 50% permanent loss of abduction in her left should, and atwenty ·percent loss ofstrength to her deltoid, biceps; supr and infraspinatus muscles ort her left side, and cervical herniations at her C3/C4/and G6/C7 vertebrae and disc bulges at C4/C5 and C5/C6. The Plaintiffs treating physician characterizes these losses as permanent, and contends that the referenced cervical spine herniations were not present on the Plaintiffs 2015 MRI ·study. The Plaintiffs treating provider attributes a permanent loss of range of motion to the Plaintiffs neck as related to the accident, and was not the result of degeneration, aging, or prior injury, A motion for judgment as· a matter of law pursuant to. CPLR 4401 or 4404 may be granted· only when the trial court.determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nontnoVihg party" (Tapia v Dattco, Inc., 32 AD3d 842, 844 [2006]; see Szczerbiak VPilat, 90 NY2d553, 556 [1997]; Jourbine: v Ma Yuk Fu, 67 AD3d 865; 866[20091). In considedng such a motion, •ii ·'the trial court must afforci the. party opposing· the motion· every inference which may properly he drawn from the facts presented,. and the facts must be cons1dered in a light most favorable to the norrinovant n · (Hand v Field, 15 AD3d 542, 54 3 [2 00 5] ~ quoting 4 4 of 66 [*FILED: 5] NASSAU COUNTY CLERK 11/08/2021 10:05 AM INDEX INDEX NO. NO. 600117/2019 600117/2019 NYSCEF DOC. DOC. NO. NO. 73 RECEIVED NYSCEF: NYSCEF: 11/03/2021 SzczerbiakvPilat, 90NY2dat556;seealsoEastmanvNash, 153AD3d 1323; 1324~1325 [2dDept 2017]). Here, based on the evidence adduced at trial, there Was a valid line of reasoning and permissible inferences from which the jury could have creditf!d the testimony of the Plaintiff and her treating physician both with respect to theassessmentof the Plaintiffs present and future pain level as well as her treating physician's determinations regarding thecausal linkage between the accident at bar and the Plaintiffs injuries; including but not limited to those injuries sustained to the cervical .spine, as well as the permanency ofthese injuries. While the Defendant's examining physician offered some opinions which contrasted with those offered. by the Plaintiffs treating physician, a jury verdict is entitled to great deference based on its evaluation of the evidence, including expert testimony. Where conflicting expert testimony is presented, the jury is entitled to accept one expert's opinion, and reject that of another. (Nuzzo v. LM Feinman, 2019 AD2d 634[2nd Dept 1995]). Further, issues of credibility are for the jury, which had the opportunity to observe the witnesses and the evidence, and its resolution is entitled to deference. A successful party is entitled to a presumption that the jury adopted areasonable view of the evidence. " A jury verdict should not be set aside as against the weight of the evidence unless the evidence so preponderates in favor of the moving party that the verdict could rtot have· been reached on any fair interpretation of the. evidence. (Lalla v. •Connolly 17 ADj d 322, 323 [2 °4 Dept 2005]). !rt swn, the award of damages for future pain anci suffering did not deviate. materially from what would be reasonable,compensation; (Latirov.City ofNew York, s 5 of 66 67 AD3d 744[2nd Dept. [*FILED: 6] NASSAU COUNTY CLERK 11/08/2021 10:05 AM INDEX INDEX NO. NO. 600117/2019 600117/2019 NYSCEF DOC. DOC. NO. NO. 73 RECEIVED NYSCEF: NYSCEF: 11/03/2021 2009] [An mvard of $650,000 for future pain and suffering for plaintiH\vho sustained one fractured rib and lumbar herniations affim1ed]; \Vimbish v. NY City Transit A.uth, 305 AD2d 596 [2 nd Depl 200 3J[i ut)' a \Yard of $500,000 in future pain and sufiering damages found not excessive for pl a.inti ff in motor vehicle accident who sustained herniated discs at C3-4,C4-5, and C5-6 \Vith impingernent, but \vho otherv,,,,ise did not present \,Vith fractures l). · Accordingly,. it is hereby ORDERED, that the Defendant's motion to set aside the jury's verdict ,:vith respect to future pain and suffering damages is DE.NlKD in its entirety, This constitutes the Decision and Order of the Court. Dated: November 8, 2021 Mineola, N.Y. ENTERED ...•·-···· ..............,. ' . ·"'. _ .- . ., ···"t_."{./ •t;... "" .....·············"\_,:, \ ~ ~~ .\ {/.::~_:r i... . ,:.:: . ~ 'y_. ~·.""'""··•flon, Thomas RademakeL J. S, C. Nov 08 2021 NASSAU COUNTY COUNTY CLERK"S OFFICE 66 of 66 I

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