Turturro v. City of N.Y.

• Decision Date: 01 April 2015
• Docket Number: 2012-08361, Index No. 37657/05.
• Citation: 2015 N.Y. Slip Op. 02754,127 A.D.3d 732,5 N.Y.S.3d 306
• Parties: Anthony TURTURRO, etc., et al., respondents, v. CITY OF NEW YORK, respondent-appellant, Louis Pascarella, et al., appellants-respondents.
• Court: New York Supreme Court — Appellate Division

127 A.D.3d 732

5 N.Y.S.3d 306

2015 N.Y. Slip Op. 02754

Anthony TURTURRO, etc., et al., respondents

v. CITY OF NEW YORK, respondent-appellantLouis Pascarella, et al., appellants-respondents.

2012-08361, Index No. 37657/05.

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

April 1, 2015.

Longo & D'Apice, Brooklyn, N.Y. (Mark A. Longo and Bonnie S. Kurtz of counsel), for appellants-respondents.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein, Jennifer A. Coyne, and Mordecai Newman of counsel), for respondent-appellant.

Gallagher, Walker, Bianco & Plastaras, Mineola, N.Y. (Robert J. Walker of counsel), for respondents.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, COLLEEN D. DUFFY, and HECTOR D. LASALLE, JJ.

Opinion

In an action to recover damages for personal injuries, the defendants Louis Pascarella and Beatrice Pascarella appeal from so much a judgment of the Supreme Court, Kings County (Kramer, J.), dated July 30, 2012, as, upon a jury verdict finding the infant plaintiff 10% at fault in the happening of the accident, the defendant Louis Pascarella 50% at fault, and the City of New York 40% at fault, finding that the infant plaintiff sustained damages, inter alia, in the principal sums of $6,000,000 for past pain and suffering, $15,000,000 for future pain and suffering, $11,500,000 for future medical expenses, and $3,000,000 for future lost earnings, and finding that the plaintiff Elida Turturro sustained damages in the principal sum of $75,000 for loss of services, upon an order of the same court dated February 6, 2012, inter alia, denying that branch of their motion pursuant to CPLR 4404(a) which was to set aside the verdict on the issue of liability and granting those branches of their motion which were to set aside the verdict on the issue of damages only to the extent of granting a new trial unless the plaintiffs stipulated to reduce the award as to future pain and suffering from $15,000,000 to $10,000,000 and the award as to future medical expenses from $11,500,000 to $7,000,000, and upon the plaintiffs' stipulation to those reductions, is in favor of the plaintiffs and against them, and the defendant City of New York cross-appeals from so much of the same judgment as, upon the jury verdict, upon the order dated February 6, 2012, among other things, denying that branch of its separate motion pursuant to CPLR 4404(a) which was to set aside the verdict on the issue of liability and granting those branches of its motion which were to set aside the verdict on the issue of damages only to the extent indicated, and upon the plaintiffs' stipulation, is in favor of the plaintiffs and against it.

ORDERED that the judgment is modified, on the facts, (1) by deleting the provision thereof awarding the plaintiff Elida Turturro the principal sum of $75,000 for the loss of the infant plaintiff's services, and substituting therefor a provision dismissing that cause of action, and (2) by deleting the provisions thereof awarding damages to the infant plaintiff in the principal sums of $6,000,000 for past pain and suffering and $10,000,000 for future pain and suffering; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for a new trial on the issues of damages for past and future pain and suffering, unless within 30 days after service upon the plaintiffs of a copy of this decision and order, the plaintiffs serve and file in the office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting to reduce the amount of damages for past pain and suffering from the principal sum of $6,000,000 to the principal sum of $3,000,000, and to further reduce the amount of damages for future pain and suffering from the principal sum of $10,000,000 to the principal sum of $7,000,000, and to the entry of an appropriate amended judgment accordingly; in the event that the plaintiffs so stipulate, then the judgment, as so reduced and amended, is affirmed, without costs or disbursements.

On December 5, 2004, at approximately 6:25 p.m., the infant plaintiff, who was then 12 years old, was struck by an automobile while riding his bicycle on Gerritsen Avenue in Brooklyn. The automobile was owned by the defendant Beatrice Pascarella and operated by the defendant Louis Pascarella. According to a police report, the vehicle was traveling at a minimum speed of 54 miles per hour in a posted 30 mile-per-hour zone at the time of impact.

As a result of the accident, the infant plaintiff was in a coma for approximately five months. He sustained, among other things, a severe head and brain injury, including extensive fractures to the skull, subdural hematomas, and intracranial hypertension. He also sustained fractures to his ankle and hip, and a collapsed lung. He underwent numerous surgeries and developed several complications, including a seizure disorder. The brain injuries permanently diminished the infant plaintiff's cognitive and motor functioning.

The infant plaintiff, by his mother, and his mother, individually, commenced this action against the Pascarellas and the City of New York. After a trial on the issues of both liability and damages, the jury returned a verdict finding the infant plaintiff 10% at fault in the happening of the accident, Louis Pascarella 50% at fault, and the City 40% at fault. The jury awarded the infant plaintiff $6,000,000 for past pain and suffering, $15,000,000 for future pain and suffering, $11,500,000 for future medical expenses, and $3,000,000 for future lost earnings. The parties stipulated as to past medical expenses. The jury also awarded the infant plaintiff's mother the sum of $75,000 for loss of his services.

The City and the Pascarellas separately moved pursuant to CPLR 4404(a), inter alia, to set aside the verdicts on the issues of liability and damages. The Supreme Court denied those branches of the defendants' separate motions which were to set aside the verdict on the issue of liability, and granted those branches of their separate motions which were to set aside the verdict on the issue of damages, but only to the extent of granting a new trial unless the plaintiffs stipulated to reduce the award as to future pain and suffering to $10,000,000 and the award as to future medical expenses to $7,000,000. The plaintiffs so stipulated, and a judgment was entered in favor of them and against the defendants. The Pascarellas appeal, and the City cross-appeals, from the judgment.

The City first argues that the cause of action against it should have been dismissed because the plaintiffs failed to plead or prove the existence of a “special duty.” This contention is without merit. When a negligence cause of action is asserted against a municipality, the court must first decide whether the municipal entity was engaged in a proprietary function or was acting in a governmental capacity at the time the claim arose (see Wittorf v. City of New York, 23 N.Y.3d 473, 478, 991 N.Y.S.2d 578, 15 N.E.3d 333 ; Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 425, 972 N.Y.S.2d 169, 995 N.E.2d 131 ; Matter of World Trade Ctr. Bombing Litig., 17 N.Y.3d 428, 446–447, 933 N.Y.S.2d 164, 957 N.E.2d 733 ; Estate of Gail Radvin v. City of New York, 119 A.D.3d 730, 732, 991 N.Y.S.2d 609 ). If the municipality's activities are proprietary in nature, the municipality is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties (see Wittorf v. City of New York, 23 N.Y.3d at 478, 991 N.Y.S.2d 578, 15 N.E.3d 333 ; Applewhite v. Accuhealth, Inc., 21 N.Y.3d at 425, 972 N.Y.S.2d 169, 995 N.E.2d 131 ; Estate of Gail Radvin v. City of New York, 119 A.D.3d at 732, 991 N.Y.S.2d 609 ). By contrast, if the municipality was exercising a nondiscretionary governmental function, it will not be held liable unless it owed a “special duty” to the injured party (see Applewhite v. Accuhealth, Inc., 21 N.Y.3d at 426, 972 N.Y.S.2d 169, 995 N.E.2d 131 ; Valdez v. City of New York, 18 N.Y.3d 69, 75, 936 N.Y.S.2d 587, 960 N.E.2d 356 ).

Here, the plaintiffs alleged, among other things, that the City was negligent in that it received numerous complaints that vehicles were speeding and racing along the entire length of Gerritsen Avenue, but completely failed to conduct a proper and adequate study of this speeding problem, and failed to implement a reasonable plan to control or resolve the dangerous condition presented on the roadway. Since a municipality's duty to keep its roads and highways in a reasonably safe condition is proprietary in nature (see Wittorf v. City of New York, 23 N.Y.3d at 480, 991 N.Y.S.2d 578, 15 N.E.3d 333 ), the City's contention that it cannot be held liable under the plaintiffs' theory absent the existence of a “special duty” to the infant plaintiff must be rejected (see Fulgum v. Town of Cortlandt, 2 A.D.3d 775, 777, 770 N.Y.S.2d 416 ; see generally Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 972 N.Y.S.2d 169, 995 N.E.2d 131 ).

The City's argument that the causes of action asserted against it must be dismissed because it is entitled to immunity is also without merit. In the field of traffic design engineering, a municipality is accorded qualified immunity from liability arising out of its highway planning decisions (see Friedman v. State of New York, 67 N.Y.2d 271, 283, 502 N.Y.S.2d 669, 493 N.E.2d 893 ; Mare v. City of New York, 112 A.D.3d 793, 794, 977 N.Y.S.2d 342 ; Kuhland v. City of New York, 81 A.D.3d 786, 787, 916 N.Y.S.2d 637 ). The doctrine of qualified immunity, however, will only apply where the municipality has conducted a study which “ ‘entertained and passed on the very same question of risk’ ” (Kuhland v. City of New York, 81 A.D.3d at 787, 916 N.Y.S.2d 637, quoting Weiss v. Fote, 7 N.Y.2d 579, 588, 200 N.Y.S.2d 409, 167 N.E.2d 63 ) as was alleged by the plaintiff. Indeed, a municipality may be held liable if, “after being made aware of a dangerous traffic...