McArdle v. Hurley

• Decision Date: 13 May 2008
• Docket Number: 2006-10254.
• Citation: 2008 NY Slip Op 04480,858 N.Y.S.2d 690,51 A.D.3d 741
• Parties: BARBARA McARDLE, Appellant, et al., Plaintiff, v. PATRICIA HURLEY, Respondent.
• Court: New York Supreme Court — Appellate Division

51 A.D.3d 741

858 N.Y.S.2d 690

2008 NY Slip Op 04480

BARBARA McARDLE, Appellant, et al., Plaintiff, v.PATRICIA HURLEY, Respondent.

2006-10254.

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

Decided May 13, 2008.

In an action to recover damages for personal injuries, etc., the plaintiff Barbara McArdle appeals from a judgment of the Supreme Court, Westchester County (LaCava, J.), dated October 18, 2006, which, upon a jury verdict on the issue of damages awarding her the principal sums of only $40,000 for past pain and suffering and only $2,000 for future medical expenses, and awarding no damages for past and future lost earnings, past medical expenses, and future pain and suffering, is in favor of her and against the defendant in the principal sum of only $42,000.

Ordered that the judgment is reversed, on the law and in the exercise of discretion, with costs, and the plaintiffBarbara McArdle is granted a new trial on the issue of damages.

On November 12, 2002, the plaintiffBarbara McArdle(hereinafter the plaintiff), age 47, a Special Agent for the Federal Bureau of Investigation, was struck by a car in a cross walk, and propelled 10 feet.She was hospitalized after the accident.Thereafter, on December 16, 2002, she underwent surgery to repair a tear in the rotator cuff tendon in her left shoulder.On March 31, 2003, she underwent surgery to realign her kneecap, and two screws were inserted to hold her kneecap in place.

In January 2004the plaintiff was authorized to return to work on restricted duty.On November 15, 2004, she had additional surgery to remove the screws in her left knee because they were causing pain.On December 30, 2005, she had additional surgery on her left knee.Her total medical expenses amounted to $35,638.84.The plaintiff submitted evidence that, as a result of her injuries and the restrictions in her duties, she was directed to retire from her position at her earliest retirement date in November 2007.

The jury limited the plaintiff's award for past pain and suffering to $40,000, declined to award her any damages for past medical expenses or past lost earnings, awarded her the sum of $2,000 in future medical expenses, and declined to award her any damages for future pain and suffering or lost earnings.On appeal, the plaintiff contends, inter alia, that the conduct of the defense counsel deprived her of a fair trial.

At trial, defense counsel, over objection, cross-examined the plaintiff about her husband's pension as a retired police officer on disability pay.The objection was overruled.Defense counsel asked the plaintiff whether she and her husband discussed "the fact...