Mast v. Desimone

• Decision Date: 15 November 2019
• Docket Number: CA 19–00030,804
• Citation: 113 N.Y.S.3d 435,177 A.D.3d 1348
• Parties: Jayme A. MAST, Plaintiff–Appellant, v. Gerard A. DESIMONE, Defendant–Respondent (Appeal No. 2.)
• Court: New York Supreme Court — Appellate Division

177 A.D.3d 1348

113 N.Y.S.3d 435

Jayme A. MAST, Plaintiff–Appellant,

v.Gerard A. DESIMONE, Defendant–Respondent (Appeal No. 2.)

CA 19–00030

804

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

Entered: November 15, 2019

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is modified on the law by granting the posttrial motion in part and setting aside the verdict with respect to damages for future pain and suffering and for future economic loss, and as modified the judgment is affirmed without costs and a new trial is granted on those elements of damages only.

Memorandum: In appeal No. 1, plaintiff appeals from an order that denied her motion pursuant to, inter alia, CPLR 4404(a) seeking to set aside a jury verdict on the issue of damages. In appeal No. 2, plaintiff appeals from a judgment that, after a jury trial, awarded plaintiff $120,000 plus interest for past pain and suffering and no damages for future pain and suffering or for future economic loss.

Inasmuch as the order in appeal No. 1 is subsumed in the subsequently entered judgment in appeal No. 2, we conclude that appeal No. 1 must be dismissed (see Reid v. Levy, [Appeal No. 2], 148 A.D.3d 1800, 1801, 51 N.Y.S.3d 774 [4th Dept. 2017] ; see generally CPLR 5501[a][2] ; Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 [1976] ).

Regarding the merits, plaintiff contends that Supreme Court erred in denying her posttrial motion inasmuch as the verdict on the issue of damages is against the weight of the evidence. We disagree with plaintiff that the court erred in denying that part of her motion with respect to the jury's award of $120,000 for past pain and suffering. We agree with her, however, that the jury's award of no damages for future pain and suffering and for future economic loss is against the weight of the evidence (see generally Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163 [1995] ; Melnick v. Chase, 148 A.D.3d 1589, 1590, 50 N.Y.S.3d 697 [4th Dept. 2017] ). We therefore modify the judgment by granting plaintiff's posttrial motion in part and setting aside the verdict with respect to the damages for future pain and suffering and for future economic loss, and we grant a new trial on those elements of damages.

Addressing first the verdict with respect to past pain and suffering, we note that a court may set aside a verdict awarding money damages where the verdict deviates materially from what is considered reasonable compensation (see CPLR 5501[c] ; Lai Nguyen v. Kiraly, [Appeal No. 2], 82 A.D.3d 1579, 1580, 921 N.Y.S.2d 417 [4th Dept. 2011] ). Because monetary awards for a plaintiff's pain and suffering "are not subject to precise quantification," a court must "look to comparable cases to determine at which point an award deviates materially from what is considered reasonable compensation" ( Huff v. Rodriguez, 45 A.D.3d 1430, 1433, 846 N.Y.S.2d 841 [4th Dept. 2007] [internal quotation marks omitted]; see Lai Nguyen, 82 A.D.3d at 1579–1580, 921 N.Y.S.2d 417 ).

Here, plaintiff, who was 30 years old at the time of the accident, presented evidence at trial that she sustained a disc herniation at L5–S1, which necessitated a discectomy and lumbar fusion surgery. Further, both parties' experts opined that plaintiff's lumbar spine injury was caused by the accident, and the jury necessarily concluded that the accident caused injury to only plaintiff's lumbar spine because, at trial, plaintiff expressly limited her request for damages to recovery for that injury.

Thus, under these circumstances, "[b]ecause it awarded damages for past pain and suffering, the jury must have concluded that plaintiff ... injured [her lumbar spine] as a result of the accident" ( Pares v. La Prade, [Appeal No. 2], 266 A.D.2d 852, 852, 697 N.Y.S.2d 413 [4th Dept. 1999] [internal quotation marks omitted]; see also Thompson v. Hickey, 283 A.D.2d 939, 939, 724 N.Y.S.2d 241 [4th Dept. 2001] ; Corsaro v. Mt. Calvary Cemetery, 258 A.D.2d 969, 969, 685 N.Y.S.2d 512 [4th Dept. 1999] ).

Nonetheless, we conclude that the jury's award of $120,000 for past pain and suffering does not deviate materially from what would be reasonable compensation when compared to similar cases involving comparable injuries to the lumbar spine. Therefore, that component of the jury's verdict is not against the weight of the evidence (see e.g. Swatland v. Kyle, 130 A.D.3d 1453, 1454–1455, 12 N.Y.S.3d 738 [4th Dept. 2015] ; Kmiotek v. Chaba, 60 A.D.3d 1295, 1296–1297, 875 N.Y.S.2d 670 [4th Dept. 2009] ; Ellis v. Emerson, 57 A.D.3d 1435, 1436–1437, 870 N.Y.S.2d 190 [4th Dept. 2008] ).

We agree with plaintiff, however, that the jury's failure to award any damages for future pain and suffering is " ‘contrary to a fair interpretation of the evidence and deviates materially from what would be reasonable compensation’ " ( Thompson v. Hickey, 283 A.D.2d 939, 940, 724 N.Y.S.2d 241 [4th Dept. 2001] ). Although the evidence at trial established that plaintiff was permitted to return to work with no restrictions, the evidence also established that the injuries she sustained in the accident severely affected her ability to perform the same sorts of tasks that she had performed with ease prior to the accident. Moreover, as noted, the parties' experts agreed that the injury to plaintiff's lumbar spine was caused by the accident, and plaintiff presented uncontroverted medical testimony at trial establishing that she continues to experience pain as a result of that injury (see Lamphron–Read v. Montgomery, 148 A.D.3d 1595, 1597, 51 N.Y.S.3d 732 [4th Dept. 2017] ; Fenocchi v. City of Syracuse, 216 A.D.2d 864, 865, 629 N.Y.S.2d 580 [4th Dept. 1995] ).

We also agree with plaintiff that the...