Lariviere v.

• Decision Date: 23 September 2015
• Parties: Leslie Karen LARIVIERE, et al., respondents, v. NEW YORK CITY TRANSIT AUTHORITY, et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

131 A.D.3d 1130

17 N.Y.S.3d 153

2015 N.Y. Slip Op. 06894

Leslie Karen LARIVIERE, et al., respondents,

v.NEW YORK CITY TRANSIT AUTHORITY, et al., appellants, et al., defendants.

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

Sept. 23, 2015.

Wallace D. Gossett, Brooklyn, N.Y. (Lawrence Heisler of counsel), for appellants.

Ronemus & Vilensky LLP (Lisa M. Comeau, Garden City, N.Y., of counsel), for respondents.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, CHERYL E. CHAMBERS, and JOSEPH J. MALTESE, JJ.

In an action to recover damages for personal injuries, etc., the defendants New York City Transit Authority and Eugene E. Matute appeal from an order of the Supreme Court, Kings County (Baily–Schiffman, J.), dated July 3, 2013, which granted that branch of the plaintiffs' motion pursuant to CPLR 4404 which was to set aside a jury verdict on the issue of damages awarding the plaintiff Leslie Karen Lariviere the sums of $40,000 for past pain and suffering, $20,000 for future pain and suffering, $26,100 for past lost earnings, $16,000 for future lost earnings, and $50,000 for future medical expenses, and awarding the plaintiff David Lariviere the sums of $10,000 for past loss of services and $0 for future loss of services, and for a new trial on the issue of damages in the interest of justice on the ground that the plaintiffs were deprived of a fair trial.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, the plaintiffs' motion pursuant to CPLR 4404 which was to set aside the jury verdict and for a new trial on the issue of damages is denied, the verdict is reinstated, and the matter is remitted to the Supreme Court, Kings County, for the entry of an appropriate judgment.

Leslie Karen Lariviere (hereinafter the injured plaintiff) was injured when, while crossing a street in Brooklyn, she was struck by a bus owned by the defendant New York City Transit Authority and operated by the defendant Eugene E. Matute (hereinafter together the defendants). The injured plaintiff, and her husband suing derivatively, commenced this action against the defendants and were subsequently awarded summary judgment on the issue of liability ( see Lariviere v. New York City Tr. Auth., 82 A.D.3d 1165, 920 N.Y.S.2d 231). At a trial on the issue of damages, the jury found that the injured plaintiff had sustained a “serious injury” within the meaning of Insurance Law § 5102(d), specifically, a “medically determinedinjury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment” (Insurance Law § 5102[d] ). The jury rejected the plaintiffs' contention that the defendants' negligence had inflicted a traumatic brain injury resulting in a “permanent consequential limitation of use of a body organ or member” ( id.). The jury awarded damages to the plaintiffs.

The plaintiffs moved to set aside the verdict pursuant to CPLR 4404(a): (1) in the interest of justice, contending that defense counsel's improper and inflammatory remarks during summation deprived them of a fair trial; and (2) contending that the verdict as to damages was contrary to the weight of the evidence. The Supreme Court granted the motion on the first ground, and the defendants appeal.

Under CPLR 4404(a), a trial court has the discretion to order a new trial “in the interest of justice” (CPLR 4404 [a]; see Micallef v. Miehle Co., Div. of Miehle–Goss Dexter, 39 N.Y.2d 376, 381, 384 N.Y.S.2d 115, 348 N.E.2d 571). In considering whether to exercise its discretionary power to order a new trial based on errors at trial, the court “ must decide whether substantial justice has been done, whether it is likely that the verdict has been affected ... and ‘must look to [its] own common sense, experience and sense of fairness rather than to precedents in arriving at a decision’ (4 Weinstein–Korn–Miller, N.Y. Civ. Prac., par. 4404.11)” (micallef v. miehLe co., div. of mieHle–goSs dexter, 39 N.y.2d at 381, 384 N.Y.S.2d 115, 348 N.E.2d 571 [citations omitted] ). On appeal, however, this Court is invested with the power to decide whether the...