Opinion
No. 14–502.
05-02-2016
Sherri FARRELL, Plaintiff, v. The WILDLIFE CONSERVATION SOCIETY d/b/a Bronx Zoo and the City of New York Department of Parks and Recreation, Defendants.
Jeff Brody, Esq., Jeff Brody Injury Law, Kingston, for Plaintiff, movant. Stephen J. McGiff, Esq., McGiff Halverson, LLP, Patchogue, for Defendants.
Jeff Brody, Esq., Jeff Brody Injury Law, Kingston, for Plaintiff, movant.
Stephen J. McGiff, Esq., McGiff Halverson, LLP, Patchogue, for Defendants.
LISA M. FISHER, J.
This is a personal injury matter tried before a jury from February 1, 2016 through February 4, 2016. The jury returned a verdict against Defendants, finding them one hundred percent (100%) liable and a substantial factor in causing Plaintiff's injuries. The jury awarded fifty thousand dollars ($50,000.00) for Plaintiff's past pain and suffering and twenty-five thousand dollars ($25,000.00) for Plaintiff's past impaired earning capacity. However, the jury declined to award any future pain and suffering or any future impaired earning capacity.
Plaintiff moves pursuant to CPLR R. 4404(a) arguing that “[t]he jury's failure to include future damages was not supported by any evidence whatsoever.” Specifically, Plaintiff argues that the defense “presented absolutely no contrary medical evidence[,]” particularly regarding the nature and permanency of Plaintiff's injuries. Plaintiff attaches only the stenographic transcript of its medical expert, Richard Dentico, M.D. There are no other exhibits provided, such as medical records, financial information, or even the transcript of Plaintiff's testimony. The full trial transcript has not been provided to the Court.
Defendants oppose such application, arguing that it is the jury's function to assess conflicting evidence, determine the credibility of the witnesses, and decide the weight to be accorded to their testimony. Since both Plaintiff and Plaintiff's expert were cross-examined, and since the benefit of every inference from the facts presented is resolved in the favor of the non-movant, and because the jury's verdict is entitled to “great deference,” Defendants contend that the jury's verdict should not be disturbed.
Rule 4404 (a) of the CPLR governs post-trial motions for judgment and a new trial where jury required, and provides that “the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of evidence” (CPLR R. 4404[a] ). “It is well established that great deference should be given to a jury's interpretation of the evidence and the factual findings that have sufficient support in evidence, even if there may be evidence leading to a contrary conclusion” (Vail v. Keeler, 166 A.D.2d 817, 818–19, 562 N.Y.S.2d 818 [3d Dept 1990] ; see Raucci v. City School Dist. of City of Mechanicville, 203 A.D.2d 714, 716, 610 N.Y.S.2d 653 [3d Dept 1994] ; see also Halvorsen v. Ford Motor Co., 132 A.D.2d 57, 60, 522 N.Y.S.2d 272 [3d Dept 1987] ).
“Although the amount of damages awarded for personal injuries is a factual question for a jury to resolve, a court may set aside a jury award of damages when the award deviates materially from what would be reasonable compensation' “ (Albanese v. Przybylowicz, 116 A.D.3d 1216, 1217, 985 N.Y.S.2d 163 [3d Dept 2014], quoting CPLR § 5501[c] ; see Ciuffo v. Mowery Constr. Inc., 107 A.D.3d 1195, 967 N.Y.S.2d 223 [3d Dept 2013] ; see also Karney v. Arnot–Ogden Memorial Hosp., 251 A.D.2d 780, 782, 674 N.Y.S.2d 449 [3d Dept 1998], lv dismissed 92 N.Y.2d 942 [1998] ; Raucci, 203 A.D.2d at 716, 610 N.Y.S.2d 653 ). “The jury's interpretation of the evidence is entitled to considerable deference, and [a court] will not disturb it unless the evidence so preponderates in favor of the moving party that the verdict could not have been reached on any fair interpretation of the evidence” (Olmsted v. Pizza Hut of America, Inc., 81 A.D.3d 1223, 1224, 917 N.Y.S.2d 742 [3d Dept 2011] ; see Karney, 251 A.D.2d at 782, 674 N.Y.S.2d 449 ; see also Raucci, 203 A.D.2d at 716, 610 N.Y.S.2d 653 [noting that “great deference is given to a jury's interpretation of the evidence and findings of fact that have sufficient support within the credible evidence, even if there is evidence leading to a contrary conclusion[.]”] ).
Therefore, “the movant must demonstrate that the preponderance of the evidence is so greatly contrary to the verdict that the jury could not have rendered it by any fair interpretation of the evidence” (Vail, 166 A.D.2d at 818–19, 562 N.Y.S.2d 818, citing Olszowy v. Norton Co., 159 A.D.2d 884, 553 N.Y.S.2d 224 [3d Dept 1990], lv denied 76 N.Y.2d 704 [1990], quoting Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499 [1978] [noting “[b]ased upon the evidence at trial, there must be no valid line of reasoning and permissible inferences which could possible lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial[.]” '] ). When presented with a CPLR R. 4404(a) motion, “the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant” (Bacon v. Bostany, 104 A.D.3d 625, 627, 960 N.Y.S.2d 190 [2d Dept 2013], quoting Szczerbiak v. Pilat, 90 N.Y.2d 553, 556 [1997] ).
Ultimately, “[w]hether a jury verdict is against the weight of the evidence is a discretionary and factual determination to be made by the trial court” (Vail, 166 A.D.2d at 819, 562 N.Y.S.2d 818, citing Nicastro v. Park, 113 A.D.2d 129, 495 N.Y.S.2d 184 [2d Dept 1985] ; see CPLR R. 4404[a] ; see also Mann v. Hunt, 283 A.D. 140, 126 N.Y.S.2d 823 [3d Dept 1953] [“Every one would admit that there are circumstances in which a trial judge's duty may require [her] to set aside a verdict which is too high, too low, or so wrong that it will not stand. The judge, indeed, has the active and continuous burden of supervising the work of the juries which report to [her]. But [she] will not interfere just because [she] dislikes the verdict or feels quite strongly [she] would have done something else; or even because [she] may think the verdict is unjust. The point of interference is not fixed on the caprice of judicial individualism; it is rather arrived at by a synthesis of all the experience that the judge has had[.]”] ).
Here, Dr. Dentico initially testified that he believed “there is a degree of permanency with this injury, especially the timeframe it has been going on.” However, when asked by Plaintiff's counsel to clarify “[w]hen you say a degree of permanency you mean for the extension of her natural life-you would hope not I suspect[,]” Dr. Dentico responded “I hope not.” Plaintiff's counsel asked “but it is likely; right?” Dr. Dentico responded “[l]ikely is a strong word. She is young, relatively health, I think that she can hopefully have a recovery ” (emphasis added). Plaintiff's counsel followed-up asking “[b]ut that does not necessarily mean it will happen; correct?” Dr. Dentico agreed and stated that it “[d]oes not necessarily mean it will happen.”
During direct and cross-examination, other relevant testimony included that Plaintiff went to physical therapy only four times, received two injections, the last MRI performed was “not significantly changed” from the first MRI which revealed an annular tear, and that Dr. Dentico never recommended surgery.
This testimony provided a “valid line of reasoning and permissible inferences which could ... lead rational people to the conclusion reached by the jury” (Olszowy, 159 A.D.2d at 884, 553 N.Y.S.2d 224, quoting Cohen, 45 N.Y.2d at 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145 ), and because “a fair interpretation of the evidence” (Olmsted, 81 A.D.3d at 1224, 917 N.Y.S.2d 742 ; Karney, 251 A.D.2d at 782, 674 N.Y.S.2d 449 ) supports the verdict, which is given “great deference” (Raucci, 203 A.D.2d at 716, 610 N.Y.S.2d 653 ), and affording every inference of the facts in a light most favorable to the non-movant (Szczerbiak, 90 N.Y.2d at 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346 ), Plaintiff's motion must be denied.
Additionally, the Court further notes that Plaintiff's motion did not provide any other exhibits or the full trial transcript. In fact, the Court finds it troubling that the trial testimony of Plaintiff is glaringly omitted. The Court cannot rectify this omission of Plaintiff's transcript, as the Court indeed has some recollection of Plaintiff's testimony-which the Court vaguely recalls as unfavorable testimony as to the permanency of her injuries. While the Court will not guess and speculate what it remembers without the transcript, the Court notes how peculiar this omission is in terms of this motion because, essentially, Plaintiff seeks to set aside the jury verdict premised on only one witness' testimony-a non-party. To the Court, it just appears that Plaintiff is cherry picking what she believes is the most favorable testimony to the Court in hopes of set aside the verdict based on all of the trial testimony. As noted above, such testimony was not as favorable as she hoped.
There was no temporal restraint on providing the transcript of Plaintiff's testimony, as Plaintiff was permitted to supplement its 4404 motion with transcript of Dr. Dentico after Plaintiff noticed such motion. Thus, it cannot be said the narrow time constraint of CPLR R. 4405 imposed an obstacle, but rather Plaintiff demonstrated by supplementing that she was capable of doing so without objection from Defendants or restriction from the Court.
For these additional reasons, the Court believes that in the absence of the full trial transcript, particularly the highly relevant testimony of Plaintiff, the Court has been precluded from a meaningful review of the relevant testimony to set aside the verdict on the issue of future injuries and earning capacity, and Plaintiff's motion must also be denied solely for this reason. (See Gorbea v. DeCohen, 118 A.D.3d 548, 549, 987 N.Y.S.2d 152 [1st Dept 2014] [“The court properly denied the [CPLR R. 4404[a] ] motion as defective due to plaintiffs' failure to annex the trial transcript to their motion. Given the nature of the issues raised on this particular motion, the absence of a transcript, or the relevant portions thereof, precluded a meaningful review.”]; citing Tesciuba v. Cataldo, 189 A.D.2d 655, 655, 592 N.Y.S.2d 326 [1st Dept 1993], lv denied 82 N.Y.2d 846 [1993], reargument denied 82 N.Y.2d 921 [1994] [“there can be no review of plaintiff's claimed entitlement to a new trial without a full trial record.”].)
To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.
Thereby, it is hereby
ORDERED that Plaintiff's motion is DENIED, and all other relief requested therein is denied in its entirety.
This constitutes the Decision and Order of the Court. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.
IT IS SO ORDERED.
Papers Considered:
Plaintiff's notice of motion, dated February 16, 2016; affirmation of Jeff Brody, Esq., dated February 16, 2016;
Affirmation in opposition of Stephen J. McGiff, Esq., dated March 3, 2016; and
Supplemental affirmation of Jeff Brody, Esq., with annexed exhibit, dated March 7, 2016.