Kleiber v. Fichtel
| Decision Date | 15 May 2019 |
| Docket Number | 2017–07504,Index No. 17200/13 |
| Citation | 172 A.D.3d 1048,101 N.Y.S.3d 354 |
| Parties | Glenn C. KLEIBER, Respondent, v. Robert P. FICHTEL, et al, Appellants. |
| Court | New York Supreme Court — Appellate Division |
172 A.D.3d 1048
101 N.Y.S.3d 354
Glenn C. KLEIBER, Respondent,
v.
Robert P. FICHTEL, et al, Appellants.
2017–07504
Index No. 17200/13
Supreme Court, Appellate Division, Second Department, New York.
Argued—March 1, 2019
May 15, 2019
Collins, Fitzpatrick & Schoene, LLP (Lewis Johs Avallone Aviles, LLP, Islandia, N.Y. [Robert A. Lifson, Islandia], of counsel), for appellants.
The Edelsteins, Faegenburg & Brown LLP, New York, N.Y. (Paul J. Edelstein, Brooklyn, and Judah Z. Cohen of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Joseph J. Esposito, J.), dated June 19, 2017. The order, insofar as appealed from, granted 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 order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, 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 denied, and the jury verdict is reinstated.
The plaintiff commenced this action against the defendants to recover damages for injuries he allegedly sustained in a motor vehicle accident on June 1, 2013. The case proceeded to a trial on the issues of whether the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d) and damages, the defendants having conceded fault for the accident. At that trial, the plaintiff presented the testimony of his treating orthopedic surgeon, who testified that he performed cervical discectomy and spinal fusion surgery on the plaintiff's spine 17 days after the accident. The plaintiff's expert testified that the surgery was originally recommended in the emergency room, on the day of the accident. He further noted that he performed surgery on the plaintiff's cervical spine without attempting physical therapy first, because he did not believe that physical therapy would help. The plaintiff's expert concluded
that the accident was the cause of the plaintiff's injuries. However, the defendant's orthopedic expert, who examined the plaintiff approximately three years after the accident and found restrictions of up to 67% in the range of motion of the plaintiff's cervical spine, noted that the plaintiff had preexisting arthritis in his neck, and opined that the accident merely temporarily exacerbated a preexisting injury. Further, the plaintiff was extensively cross-examined as to inconsistencies between his trial testimony and his testimony at an earlier social security hearing and as to inconsistencies between his testimonies and his actions as depicted on a surveillance video, including his lifting, carrying, and changing of an automobile tire.
During his summation, defense counsel argued that the plaintiff has "been lying and exaggerating for a few years now." This remark was not objected to by the plaintiff's counsel. Defense counsel also referred to the plaintiff's case as a "tissue box of lies," and later as a "landfill of lies." Again, neither remark was objected to. The phrase "tissue box of lies" was a reference to the plaintiff's testimony, both at trial and at the social security hearing, to the effect that he had difficulty lifting objects, such as a tissue box. Defense counsel twice referred to the plaintiff's case as a "charade," which remarks were not objected to. He also urged the jury that the plaintiff's expert knowingly performed unnecessary surgery on the plaintiff because "that's where the money is." No objection was interposed.
At the conclusion of the defense summation, the plaintiff's counsel did not lodge any objections, did not request a curative instruction, and did not move for a mistrial. The jury found that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), that the plaintiff sustained $ 50,000 in damages for lost earnings, and that the plaintiff's damages should be reduced by $ 25,000 because of his failure to wear an available seat belt. The plaintiff...
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