Guerra v. Ditta

• Decision Date: 08 July 2020
• Docket Number: 2017–06397,2016–09503,Index No. 502186/12
• Citation: 185 A.D.3d 667,127 N.Y.S.3d 148
• Parties: Cecilia GUERRA, Appellant, v. Paul A. DITTA, Respondent.
• Court: New York Supreme Court — Appellate Division

185 A.D.3d 667
127 N.Y.S.3d 148

Cecilia GUERRA, Appellant,
v.
Paul A. DITTA, Respondent.

2016–09503
2017–06397
Index No. 502186/12

Supreme Court, Appellate Division, Second Department, New York.

Argued December 9, 2019
July 8, 2020

127 N.Y.S.3d 149

Ogen & Sedaghati, P.C., New York, N.Y. (Eitan Alexander Ogen of counsel), for appellant.

McCabe, Collins, McGeough, Fowler, Levine & Nogan LLP, Carle Place, N.Y. (Patrick M. Murphy of counsel), for respondent.

LEONARD B. AUSTIN, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Wavny Toussaint, J.), dated July 22, 2016, and (2) an order of the same court dated May 4, 2017. The order dated July 22, 2016, denied the plaintiff's motion for an evidentiary hearing on the issue of alleged juror misconduct. The order dated May 4, 2017, insofar as appealed from, denied that branch of the plaintiff's motion which was pursuant to CPLR 4404(a) to set aside a jury verdict on the issue of damages in the interest of justice and for a new trial on the issue of damages.

ORDERED that the appeal from the order dated July 22, 2016, is dismissed as academic in light of our determination of the appeal from the order dated May 4, 2017; and it is further,

ORDERED that the order dated May 4, 2017, is reversed insofar as appealed from, on the law, that branch of the plaintiff's motion which was pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of damages in the interest of justice and for a new trial on the issue of damages is granted, and the matter is remitted to the Supreme Court, Kings County, for a new trial on the issue of damages; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The parties were involved in a rear-end motor vehicle collision on May 25, 2010. The accident occurred when the traffic light at which the parties were stopped turned green. The defendant took his foot off his brake, and his vehicle struck the

127 N.Y.S.3d 150

rear of the plaintiff's vehicle. The plaintiff alleged that she sustained significant injuries to her back as a result of the accident. Summary judgment on the issue of liability was granted to the plaintiff and a trial was held on the issue of damages.

Prior to trial, the plaintiff moved to preclude the defendant's proffered biomechanical expert, Kevin K. Toosi, from testifying or, in the alternative, for a hearing pursuant to Frye v. United States, 293 F. 1013 [D.C. Cir.]. The motion was denied. Toosi testified at trial that the plaintiff's injuries could not have been caused by the accident. The jury returned a verdict in the defendant's favor, finding that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The plaintiff moved, inter alia, pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of damages in the interest of justice and for a new trial on the issue of damages. The plaintiff also moved for an evidentiary hearing to determine whether one of the jurors committed misconduct and improperly influenced the verdict. In an order dated...