NOTE FROM THE EDITOR:
This month we are introducing a new column authored by attorney Michael J. Dischley called “What is it Worth?” Mike, who works in our Melville, NY office and handles cases throughout the New York Metro area, will be following recent Appellate and some Trial Court decisions regarding case values. I think you will enjoy Mike’s column. Feel free to reach out to him with any questions or comments.
Since my last note, Litigation Chair Michael F. Perley was named a Fellow of the New York State Bar Foundation! Fellows are nominated by peers and recognized for distinguished achievement, dedication to the legal profession, and commitment to the organized bar and service to the public. Being nominated and elected is a notable achievement and we are very proud of Mike! Additionally, I am honored to announce that I, along with Hurwitz Fine Member and Premises Pointers columnist Anastasia M. McCarthy have been selected as finalists for the 2023 ATHENA Awards® in the Leadership Award and Young Professional Leadership Award categories. ATHENA recognizes individuals who have achieved professional and personal success, given back to their communities, and inspired others to reach their full potential. Anastasia and I are both thrilled to represent the firm at this event.
I also recently had the chance to gather last week with friends and colleagues at the Federation of Defense and Corporate Counsel’s winter meeting in Nashville. For those of you who do not know about the FDCC, it is a vetted group of defense counsel and industry leaders dedicated to enhancing civility and integrity within the profession; providing cutting-edge educational sessions; offering memorable meetings; fostering civil justice and promoting fellowship (see FDCC website). It was an excellent meeting filled with innovative programming and many opportunities to connect with colleagues from across the country and beyond.
And finally, on a very personal note, this past month I, along with many others, experienced a parent’s worst nightmare. My daughter is a freshman at Michigan State University and on February 13th at approximately 8:30 p.m. she received an alert from school that said “Run, Hide, Fight” in response to an active shooter on campus. I don’t usually write about personal things, mostly because there is so much else to talk about, but this month I feel compelled to talk about it. Three students lost their lives and five were critically injured on what should have been a normal Monday night on a college campus, with students meeting up with friends in the union, studying in their dorm rooms, exercising in the fitness center, and doing the things college kids do. Instead, students across campus were barricaded in their dorm rooms, hiding under tables in the student union, locked in bathrooms and terrified by gunshots. This went on for almost four hours. My daughter was in a dorm room with three other students with a dresser barricading the door. They were told to stay low to the ground, keep the lights off and stay quiet. She was scared – as were we. We also felt helpless. When I dropped my daughter off for college in August, I never dreamed that she would go through a mass shooting. I never thought it would hit so close to home, but it did. Before February 13th, I viewed mass shootings through the lens of a lawyer helping my clients manage the risks of an active shooter in their businesses and schools. My lens is now forever changed.
Until next month,
Jody
And don’t forget to subscribe to our other publications:
Coverage Pointers: This biweekly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Coverage Pointers, the electronic newsletter that started it all, continues to offer guaranteed publication every other Friday, and a read-at-a-glance summary of important decisions as they happen. Contact Dan Kohane at [email protected] to be added to the mailing list.
Labor Law Pointers: Labor Law Pointers offers a monthly review and analysis of every New York State Labor Law case decided during the month by the Court of Appeals and all four Departments. This e-mail direct newsletter is published the first Wednesday of each month on four distinct areas – New York Labor Law Sections 240(1), 241(6), 200 and indemnity/risk transfer. Contact Dave Adams at [email protected] to subscribe.
Medical & Nursing Home Liability Pointers: Medical & Nursing Home Liability Pointers provides the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities. Contact Chris Potenza at [email protected] to subscribe.
Products Liability Pointers: This monthly newsletter covers all areas of products liability litigation, including negligence, strict products liability, breach of warranty claims, medical device litigation, toxic and mass torts, regulatory framework and governmental agencies. Contact Chris Potenza at [email protected] to subscribe.
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Retail, Restaurant and Hospitality Happenings Around New York State and Beyond
By: Jody E. Briandi [email protected] and Lani J. Friedhaber
1/25/23 Linden v. Target Corporation
United States District Court, Eastern District of New York
Court granted Defendant’s motion for summary judgment because Plaintiff failed to establish that Defendant breached its duty or that Defendant had notice of a dangerous condition on the floor where she fell.
Plaintiff brought an action in state court to recover for personal injuries she allegedly sustained when she tripped and fell on the floor in a Target store. Defendant removed the case to federal court and filed a motion for summary judgment.
Defendant argued that Plaintiff was unable to show proximate cause because she failed to identify the cause of her fall. In support of its argument, Defendant cited to portions of Plaintiffs deposition testimony where she stated she was unsure how she tripped. In response, Plaintiff pointed to parts of her deposition testimony in which she described the very shiny, highly glossy floor. The Court determined Plaintiff’s contradictory explanations constituted a genuine issue of fact regarding proximate cause.
Defendant next argued that Plaintiff had failed to raise a genuine issue of fact regarding whether it violated its duty of care in how it cleaned or waxed the floors. In support, Defendant provided deposition testimony and sworn affidavits of employees, as well as security footage video which showed guests and employees walking through the area without incident over a 15-minute period immediately prior to Plaintiff’s fall. The Court found that there was nothing in the record evidencing that Defendant created the dangerous condition and that Plaintiff had failed to establish a genuine dispute of fact regarding the existence of a hazard or who created it. Therefore, Plaintiff failed to establish that Defendant had breached its duty to maintain the store in a reasonably safe condition.
Lastly, the Court noted that, even if there was evidence that a hazardous condition existed and was negligently created, Plaintiff failed to present evidence that Defendant had actual or constructive notice of the condition.
2/17/23 Marte v. Dollar Tree Stores, Inc.
United States District Court, Eastern District of New York
Court denied third-party defendant’s motion for summary judgment because material issues of fact exist regarding the issue of notice.
Plaintiff brought an action to recover for injuries she sustained when she allegedly slipped and fell on a puddle of water on the floor underneath a water-damaged spot on the ceiling of a Family Dollar store. Family Dollar then commenced a third-party action against 705-711 Franklin Realty LLC (“Franklin Realty”) alleging that, under the terms of the lease agreement between Family Dollar and Franklin Realty, Franklin Realty was liable for damages to the plaintiff. Franklin Realty then moved for summary judgment.
Franklin Realty’s first argument was that it was an out-of-possession landlord without prior notice of the defect. The Court found that the lease agreement between Family Dollar and Franklin Realty made it clear that Franklin Realty was obligated to maintain and repair and replace all exterior portions of the building, including the roof. With regard to the issue of notice, the facts show that Family Dollar had sent a letter to the owner of Franklin Realty, Mark Weiss, in January 2017 regarding a leak in the roof of the store. Family Dollar sent a second letter to Mr. Weiss in August 2017 stating that the store had reported a roof leak on the sales floor when it rains. In June 2018, one month prior to Plaintiff’s fall, Family Dollar sent a third letter to Mr. Weiss, in which it discussed a roof leak in need of repair and that there were four major leaks causing ceiling tiles to fall. Mr. Weiss claimed to have not received any letter informing him of a roof leak or problem. The Court determined that whether Franklin Realty had actual or constructive notice is a disputed material fact.
Franklin Realty next argued that Family Dollar had not demonstrated that Franklin Realty breached the lease agreement, and that Franklin Realty therefore had not breached any duty it owed to Family Dollar. The Court noted that, as previously discussed, disputed issues of material fact exist on the issue of notice. As such, there remains an issue of fact as to whether Franklin Realty breached the terms of the lease agreement by failing to repair the roof or ceiling of the store, and whether plaintiff's injury was in fact caused by the defect.
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School District & Municipal Liability
By: Anastasia M. McCarthy [email protected]
Dear Readers,
If you are wondering how things are in Buffalo—following our most recent storm, my brother-in-law sent me a video of himself ice skating on his driveway. “Walk like a penguin” is truly the new mantra around here.
This month’s case involves the remand of a case for a new trial following a defense verdict. It is a stern reminder of how special education services provide relevant context for the supervisory needs of special education students (and that the charge conference is one of the most important parts of a civil trial).
02/23/2023 Jaquin v. Canastota Central School District
Appellate Division, Third Department
Where the Court remanded a case for a second trial following the exclusion of evidence surrounding a 504 Plan.
Infant Plaintiff was a Kindergarten student injured in a mainstream physical education class. Importantly, the student was previously diagnosed with a disability that caused deficiencies related to her physical coordination and strength and for which she was provided a 504 plan by the District. The 504 plan noted that the child had physical limitations that might affect her independence in the classroom with fine motor, perceptual motor, and visual motor activities, but otherwise provided no specific accommodations (it simply allowed for her to receive occupational and physical therapy).
At the time of the accident, Plaintiff had just completed an adaptive physical education program called “KiDnastics”, which develops fundamental motor skills like rolling, jumping, balancing, vaulting, hanging and climbing. As part of the multi-week course, students (such as the plaintiff) are required to complete graduated skills lessons and undergo individual evaluation. After completing the program, the Infant Plaintiff was allowed to continue to practice her skills at various stations throughout the school gym while the gym teacher continued evaluating other students. Infant Plaintiff was attempting to practice her “star jump” off of a 16 inch box mat when she fell and injured her arm.
Plaintiff’s mother commenced a personal injury lawsuit on her behalf, setting forth a claim of negligent supervision and expressly conceding that she did not intend to challenge the sufficiency of Plaintiff’s 504 plan.
At the conclusion of discovery, the District unsuccessfully moved for summary judgment (which was affirmed on a different appeal). The matter was then placed on the trial court’s trial calendar (bifurcated on the issue of liability) when Plaintiff’s counsel served a CPLR 3101 disclosure stating that Plaintiff would call an expert educator as a witness at trial. Defendant moved to preclude the expert’s testimony on certain matters and to prevent the Plaintiff from proffering evidence on the issue of the 504 plan’s sufficiency. The trial court granted the defendant’s motion in full. Defendant then moved a second time, seeking to preclude the testimony of Plaintiff’s kindergarten teacher, physical therapist, and occupational therapist on the basis that their testimony(that the child should have been subject to a different level of supervision than a general education student) implicitly challenges the sufficiency of the 504 plan. Following an offer of proof as to each witness, the Court agreed that the testimony served the limited purpose of attacking the sufficiency of the 504 plan and granted the Defendant’s motion.
At trial, the jury heard testimony from Plaintiff, the Infant Plaintiff, the gym teacher, the developer of the KiDnastics program, and Defendant’s Assistant Superintendent for Instruction and Special Education Programs (who extensively addressed the District’s Section 504 policy and his position that modifying the child’s participation in KiDnastics , or adding a higher degree of supervision than that provided to the rest of the class, would constitute a “significant change in her 504 plan” and, potentially, discrimination under federal law).
At the conclusion of evidence, the trial court then instructed the jury on negligent supervision and various federal laws. The jury returned a defense verdict and Plaintiffs appealed, arguing that the Court’s erroneous evidentiary rulings and improper jury instructions resulted in substantial injustice (contentions the Appellate Division agreed with).
The Appellate Division reasoned that the District’s central obligation is to supervise students as a reasonable parent in similar circumstances would; the 504 plan provides the context such a parent would encounter. Indeed, as noted in the Court’s decision: Although schools are not insurers of safety, they do have a duty to adequately supervise the students in their charge and will be liable for foreseeable injuries proximately related to the absence of supervision. The duty owed is to exercise that level of care as would a parent of ordinary prudence in comparable circumstances—this includes the obligation to assign students to supervised athletic activities within their abilities. A school that is aware that a student has a disability rendering them more susceptible to injury is required to exercise care commensurate with that disability. A school district’s written 504 plan does not, however, “operate at as a supervision ceiling in all respects and circumstances. The central purpose of the Section 504 is to assure that students with disabilities receive equal treatment in relation to their peers…”
Ultimately, the Court held that: (1) evidence and/or argument at trial that conveyed to the jury that the defendant was legally prohibited from any form of supervision not expressly provided for in the 504 plan was improper; (2) the testimony of the kindergarten teacher, physical therapist, and occupational therapist, was improperly excluded since those witnesses possessed direct knowledge of the child and her abilities (and, as proffered, because they would testify to how they supervised the infant plaintiff in similar physical activities in light of her known limitations); (3) Plaintiff’s educational expert should have been allowed to testify and the Court’s preclusion was an abuse of discretion; (4) the Court’s instructions about the 504 plan and the duty to avoid discrimination was improper given that there was no claim under the IDEA, Section 504, or the ADA—such instructions were irrelevant and (5) “of greater concern, the instruction erroneously suggested to the jury that defendant had no power to supervise the child beyond providing accommodations specified in her 504 plan, of which there were none.” In light of all of these errors, the Court concluded that “ the jury was presented with evidence and an instruction unduly concerned with defendant's compliance with federal law, confusing the fundamental nature of this case” requiring a remand for a new trial.
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Homeowner Liability, Recreational Accidents, and Discovery Angles
By: Marc A. Schulz [email protected]
Hello Subscribers,
Football is over, my little guy is sick, and my driveway is currently covered in ice so thick that I was using a spade earlier to unsuccessfully get out. This month, I report on our fourth discovery case flowing from the Court of Appeals decision in Forman v Henkin. In Joseph v Edun, the defense filed a motion to compel seeking authorizations for plaintiff’s college records and past medical records due to claims for PTSD, anxiety, depression, irritability, difficulty sleeping, and substantial impairment to his ability to engage in normal daily activities, as well as an exacerbation of preexisting asymptomatic conditions. Considering the substance of plaintiff’s prior medical records, the First Department held that defendant was entitled to plaintiff’s academic and medical records to determine to what extent the injuries complained of are attributable, if at all, to the trauma plaintiff suffered in the college. This case is a good example of a plaintiff voluntarily placing his physical condition in issue by alleging that it was exacerbated by his injuries in the incident, which enabled defendant to determine the extent, if any, to which plaintiff’s alleged injuries and damages are from prior incidents other than the one in dispute. I’m always interested in discussing discovery issues and Forman v Henkin, so please reach out and share your experiences.
Until next issue, stay safe and warm …
Marc
01/19/23 Joseph v Edun
Appellate Division, First Department
Defendant entitled to plaintiff’s academic and medical records to determine to what extent the alleged injuries are attributable if at all, to the trauma plaintiff suffered in college.
The trial court denied defendant's motion to preclude plaintiff from testifying or offering evidence on the issue of liability at trial for failure to comply with discovery demands, or to compel plaintiff to provide authorizations for plaintiff’s college records and past medical records. The First Department, citing Forman v Henkin, unanimously reversed the trial court and granted defendant’s motion to compel the requested discovery because of the claims asserted in plaintiff’s supplemental bill of particulars and his post-accident medical records, which suggested that plaintiff’s behavior changed while he was away at college because of trauma he suffered there, and not in the subject incident.
The Court also held that plaintiff voluntarily placed his physical and psychological condition in issue by alleging that the accident aggravated or exacerbated preexisting asymptomatic conditions before the incident. Therefore, the Court also held that defendants were entitled to determine the extent, if any, that plaintiff’s claimed injuries were attributable to accidents other than the one underlying the action.
02/02/23 Villanueva v National Frgt., Inc.
Appellate Division, First Department
Substitution of defendant’s counsel does not constitute “unusual or unanticipated circumstances” to warrant post-note of issue discovery.
The trial court denied defendant’s motion to compel plaintiff to submit to a post-note of issue independent medical examination. The First Department unanimously affirmed the trial court’s determination that defendant failed to show “unusual or unanticipated circumstances” that would warrant post-note of issue discovery. The Court held that substitution of defendant’s counsel, which occurred after the note of issue was filed, does not constitute “unusual or unanticipated circumstances” under 22 NYCRR 202.21(d). The Court also noted that defendant waived its right to conduct post-note of issue medical examination of plaintiff by failing to comply with the deadlines set by the trial court in the multiple orders issued before and after his examination before trial.
02/10/23 Grooms-Yarboro v Carter
Appellate Division, Fourth Department
Plaintiff not entitled to protective order seeking to preclude defendants from asking her questions at her deposition about the nature and extent of preexisting conditions in her medical records.
Plaintiff was allegedly injured after she slipped and fell in a parking lot owned by defendants. The trial court denied her motion for a protective order, pursuant to CPLR § 3103(a) and/or the appointment of a judicial hearing officer or referee to supervise discovery. The motion also sought to preclude defendants from asking plaintiff questions at her deposition about the extent and nature of various preexisting medical conditions identified in her medical records. The Fourth Department unanimously affirmed the trial court’s decision, and concluded that, given the elements of damages requested by plaintiff in her bill of particulars, the trial court did not abuse its broad discretion in denying plaintiff’s motion.
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Pushing Buttons: The Ups & Downs of Vertical Transportation Law
By: Scott D. Kagan [email protected]
Have you ever looked at an old photograph of yourself and said – “is that me?” One ability usually associated with human behavior is self-awareness. The ability to recognize yourself in the mirror or in a photograph. It is now believed that certain fish are capable of recognizing their own faces in photos and mirrors, leading scientists to believe that self-awareness may be more widespread than initially thought. Sociologist Masanori Kohda of Osaka Metropolitan University in Japan (and colleagues) reported in the Proceedings of the National Academy of Sciences that some fish can pass the mirror test and were able to distinguish their own faces from those of others in photographs. The study opines that this suggests that these capable fish identify the same way humans do – via mental images of one’s face. We always knew that fish had veins, but we didn’t know they were so vain.
After a busy end to 2022, vertical transportation cases have gone quiet to start 2023. We find ourselves with only one case this month. While brief, the matter is interesting because we get to look at a res ipsa case in the context of exclusive control. NYS PJI 3.02 provides the general rule and accompanying rationale. To warrant submission of the inference for jury consideration “the event must be caused by an agency or instrumentality within the exclusive control of the defendant at the time of the act of negligence, thereby affording a rational basis for concluding that the defendant was probably responsible for any negligence connected with the event.” The purpose of the rule is to eliminate (within reason) all explanations for the injury other than the defendant’s negligence. It does not require that the possibility of other causes be altogether eliminated, but only that the likelihood must be so reduced that the greater probability lies with the defendant. While expert evidence may be warranted to prove exclusive control, it is not required. In the case below, fact witness testimony was sufficient to prove that defendant did not have exclusive control. In opposition, Plaintiffs failed to provide evidence (expert or otherwise) to combat the witness testimony.
I hope you enjoy the ride.
Scott
2/14/2023 Lucy Maldonado, et al. v. Liberty Elevator Corporation, et al.
Appellate Division, First Department
Expert’s failure to inspect the Elevator detrimental to summary judgment opposition.
Liberty Elevator Corporation (“Liberty”) filed a motion for summary judgment dismissing Plaintiffs’ complaint. Plaintiffs appealed.
Liberty established a prima facie case that it did not owe a duty to Plaintiffs by demonstrating that it did not launch a force or instrument of harm. See Espinal v. Melville Snow Constr., 98 N.Y.2d 136, 140 (2002). Employees of Liberty provided relevant testimony that the malfunctioning of the freight elevator (the “Elevator”) was caused by a misalignment of the Elevator’s doors due to the knocking of shopping cars, pallet jacks, and U-boat carts into the doors by supermarket employees. This testimony established that Liberty did not create or exacerbate the dangerous condition that resulted in the accident.
Vital to the decision was Plaintiffs’ failure to inspect the Elevator. Plaintiffs’ expert opined that Liberty inadequately inspected or repaired the Elevator during the prior maintenance work. However, if true, this opinion would constitute (at most) a failure to be an instrument for good, not the creation or exacerbation of a hazardous condition. Moreover, the Court held that res ipsa did not apply. Liberty established (with the employee testimony, above) that it did not have exclusive control and that it was the actions of the supermarket employees that caused the Elevator to malfunction.
Affirmed.
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What Is It Worth?
By: Michael J. Dischley
Dear Readers,
The most common, and often the most important, questions we receive revolve around “what is the injury worth?” Obviously, the value of a matter depends on a lot of factors, the most significant being a determination and apportionment of liability, and analysis of physical and economic damages. In this monthly update, we will examine the most recent decisions from the Appellate Court and select Trial Courts as to how juries are valuing matters in various jurisdictions and to what extent the Appellate level Courts are upholding or overturning the Trial Court jury determinations so we can get a better understanding of what an injury is actually worth.
Enjoy,
Michael J. Dischley
01/11/23 Gwendolyn Williams v. Patrick Atse Ncho
Appellate Division, Second Department
Jury Verdict Awarding Plaintiff $100,000 for Right Knee Torn Medial Meniscus Requiring Arthroscopic Surgery Reinstated Following Appeal.
On June 18, 2015, plaintiff, Gwendolyn Williams (38), and her daughter, T.C. were passengers in a vehicle operated by defendant, Patrick Ncho. The vehicle was involved in an accident with another vehicle, and plaintiff was transported to the hospital with complaints of pain in her neck, back, right knee and right shoulder. Plaintiff eventually underwent a right knee arthroscopic surgery to repair a torn medial meniscus.
Plaintiff brought suit against both drivers in Kings County. Following trial as to liability, the jury determined that defendant was at fault of the accident and a damaged trial following. Following the damages trial, the jury awarded plaintiff $100,000 in damages for pain and suffering, solely pertaining to her right knee meniscal tear and dismissed the remaining injuries.
Following this award, defendant moved to set aside the verdict arguing that the evidence presented did not meet the serious injury threshold requirements. Specifically, that the evidence presented did not meet the 90/180-day threshold. The Trial Court agreed, finding that plaintiff failed to prove a medically determined condition and, specifically, that there was no sufficient evidence to prove that her condition curtailed all of her customary and daily activities for a great extent during that period. As such, the Trial Court set aside the jury verdict on damages and directed judgment in favor of defendant in the matter.
Plaintiff then appealed, and the Appellate Court reinstated the initial jury verdict for $100,000 in damages for plaintiff’s injuries.
01/12/23 Phyllis Streit v. Katrine Apts. Associates, Inc.
Appellate Division, Third Department
Jury Verdict Awarding Plaintiff $750,000 for Left Shoulder Three-Part Humerus Fracture Requiring Open Reduction Internal Fixation and Subsequent Reverse Shoulder Arthroplasty
On June 27, 2018, plaintiff, Phyllis Streit, was injured after tripping over partially obstructed chicken wire connected to a downed fence while travelling to work from her apartment complex owned by defendant, Katrine Apts. Associates, Inc., in Ulster County. As a result of the fall, plaintiff was diagnosed with a three-part proximal humerus fracture requiring her to undergo surgery on her left shoulder in June 2018 and then an additional surgery in November 2020 to alleviate pain and increase her function.
Following a trial, the jury found that defendant owned, occupied or exercised control over the location where plaintiff fell, that it failed to maintain that location in a reasonably safe condition and that such negligence was a substantial factor in causing plaintiff's injuries. The jury apportioned 70% of the fault for plaintiff's accident to defendant and awarded plaintiff $100,000 for past pain and suffering and $650,000 for future pain and suffering.
Thereafter, defendant moved pursuant to CPLR 4404 to set aside the verdict and order a new trial for liability and damages. The Supreme Court denied the motion, determining that there was sufficient evidence for the jury to conclude that defendant had exercised control over the vicinity of plaintiff's fall and that the measure of damages was not excessive. Defendant appeals from the judgment on the verdict, as well as the order denying the motion to set it aside.
With regard to liability, the Appellate Court found that there was testimony from defendant's maintenance manager which provided grounds for the jury to conclude that defendant had maintained the property up to the fence itself. Which, the Appellate Court found to be sufficient for the jury to infer that defendant had control over the location of the chicken wire that had caused plaintiff to fall. Further, the Appellate Court found that the facts did not warrant an adjustment to the jury's determination as to apportionment of fault.
With regard to damages, the trial evidence established that plaintiff underwent multiple surgeries following the accident and that she still had significant limitations on her ability to perform routine tasks, such as reaching for her seatbelt or getting dressed. Moreover, plaintiff testified to the significant pain she incurs when she extends her left arm. Further, plaintiff’s treating physician noted that plaintiff had suffered a "severe fracture" and opined that, despite surgical intervention to address her injury, plaintiff would never regain normal shoulder function and would have permanent pain and discomfort in her shoulder. In view of the evidence presented concerning the severity and permanency of plaintiff's injury, the Appellate Court do not believe that the jury's award materially deviated from what constituted reasonable compensation and declined to disturb it.
12/27/22 Salih Karasu, et al., v. Security Auto Sales, Inc., et al.
Trial Court, Nassau County
Jury Verdict Awarding Plaintiff $5,130,137 reduced to $2,357,106 for Pain and Suffering and Economic Damages but Judge only Reduced Economic Damages and Upheld Pain and Suffering Damages.
On March 26, 2015, plaintiff, Salih Karasu (40), was working as a commercial roofing mechanic when he fell from a ladder, resulting in a fractured right ankle. The next day plaintiff was placed in an external fixator, which remained in place for approximately 3 weeks. Plaintiff returned to the hospital on April 15, 2015, to have the external fixator removed and plaintiff underwent open reduction internal fixation of his right ankle, inserting hardware into plaintiff’s right ankle. Plaintiff was unable to weight bear for 9 months and was unable to return to work for 2 years. The hardware was eventually removed 2 years post-surgery plaintiff was further recommended to undergo ankle fusion surgery but did not undergo.
With regard to liability, plaintiff sued the owners of the premises under Labor Law Section 240(1) and was subsequently granted summary judgment in the matter as to liability.
At trial before Hon. Pineda-Kirwan, a Nassau County Jury awarded plaintiff a total of $5,130,137 in damages, broken down as follows:
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Past Lost Earnings - $335,395;
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Past Pain and Suffering - $1,000,000;
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Future Medical Expenses - $1,500,000;
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Future Lost Earnings - $892,424;
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Future Pain and Suffering - $1,000,000;
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Future Social Security - $277,318;
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Loss of Consortium - $125,000.
Defendants moved pursuant to CPLR 4404 to set aside the jury verdict as to damages. Defendants argued that the evidence presented was insufficient to support the jury findings as to all aspects of damages and contended that the aware of $2,000,000 was excessive and not in live with what current case law has deemed reasonable, which defendants contend is around $500,000.
Hon. Pineda-Kirwan agreed, noting that the testimony as to future medical expenses was speculative and that plaintiff had already stopped treating. With regard to future lost earnings and social security, the Court noted that the jury erred in awarding plaintiff the entire claimed lost earnings, not the 10 years as intended. However, the Court found no basis for setting aside the verdict with respect to the awards for past and future pain and suffering.
As such, the Trial Court modified the jury verdict awarding $2,773,031 in damages, broken down as follows:
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Past Lost Earnings - $335,395;
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Past Pain and Suffering - $1,000,000;
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Future Medical Expenses - $137,200;
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Future Lost Earnings - $133,838;
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Future Pain and Suffering - $1,000,000;
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Future Social Security - $41,598;
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Loss of Consortium - $125,000.
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