Decrescenzo v. Gonzalez

• Decision Date: 11 December 2007
• Docket Number: 2006-05823.
• Citation: 847 N.Y.S.2d 236,2007 NY Slip Op 09720,46 A.D.3d 607
• Court: New York Supreme Court — Appellate Division
• Parties: PATRICK DECRESCENZO et al., Respondents, v. ORLANDO GONZALEZ et al., Appellants.

46 A.D.3d 607

847 N.Y.S.2d 236

2007 NY Slip Op 09720

PATRICK DECRESCENZO et al., Respondents, v.ORLANDO GONZALEZ et al., Appellants.

2006-05823.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided December 11, 2007.

In an action to recover damages for medical malpractice, etc., the defendants Orlando Gonzalez and Orlando Gonzalez, M.D. P.C., appeal, and the defendant St. Vincent's Catholic Medical Center of New York separately appeals, from a judgment of the Supreme Court, Kings County (Bayne, J.), dated May 17, 2006, which, (a) upon a jury verdict on the issue of liability, (b) upon a jury verdict on the issue of damages awarding the infant plaintiff the sums of $50,000 for future medical care, $40,000 for future medical equipment, $40,000 for future physical therapy, $40,000 for future occupational therapy, $40,000 for

future psychological therapy, $40,000 for future aide service, $250,000 for past pain and suffering, and $100,000 for future pain and suffering, (c) upon an order of the same court dated February 28, 2005, granting that branch of the plaintiffs' motion which was to correct an error in reporting the jury verdict on the issue of damages to the extent of directing a hearing on the issue of whether the jurors made a ministerial error in recording the verdict, (d) upon an order of the same court dated March 11, 2005, which, after the hearing, granted that branch of the plaintiffs' motion which was to correct an error in reporting the jury verdict on the issue of damages to reflect the jury's intent to award the infant plaintiff the sums of $3,300,000 for future medical care, $2,640,000 for future medical equipment, $2,000,000 for future physical therapy, $2,000,000 for future occupational therapy, $2,320,000 for future psychological therapy, $2,000,000 for future aide service, $250,000 for past pain and suffering, and $6,600,000 for future pain and suffering, and (e) upon an order of the same court dated July 22, 2005, denying those branches of the defendants' separate motions which were, inter alia, to set aside the verdict and for a new trial on the ground that certain improper conduct occurred during the trial, and granting those branches of the defendants' separate motions which were to set aside the verdict as excessive to the extent of reducing the award of damages for future medical care from the sum of $3,300,000 to the sum of $180,226, the award of damages for future medical equipment from the sum of $2,640,000 to the sum of $508,872, and the award of damages for future pain and suffering from the sum of $6,600,00 to the sum of $4,950,000, is in favor of the infant plaintiff and against them in the aggregate sum of $14,209,098.

Ordered that the judgment is reversed, on the law, those branches of the defendants' separate motions which were to set aside the verdict and for a new trial on the ground that certain improper conduct occurred during the trial are granted, the order dated June 22, 2005, is modified accordingly, and the matter is remitted to the Supreme Court, Kings County, for a new trial before a different justice, with costs to abide the event.

"[A]ll litigants, regardless of the merits of their case, are entitled to a fair trial"(Habenicht v R. K. O. Theatres,23 AD2d 378, 379[1965];seeSalzano v City of New York,22 AD2d 656[...