Opinion
Index No. TS-300066-19/KI
10-23-2023
Patricia Stallworth, Plaintiff, v. Lodi Inc., A.B.E.S. CONSTRUCTION, INC. AND JEFFERSON & SONS, LLC, Defendants.
Adam Wolk, Liakas Law, P.C., Counsel for Plaintiff Steven Alexander Biolsi, Biolsi Law Group, Counsel for Defendants.
Unpublished Opinion
Adam Wolk, Liakas Law, P.C., Counsel for Plaintiff
Steven Alexander Biolsi, Biolsi Law Group, Counsel for Defendants.
SANDRA E. ROPER, J.
RECITATION, AS REQUIRED BY CPLR 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION
NOTICE OF MOTION & AFFIDAVIT OF SERVICE 1-2
AFFIRMATION IN SUPPORT & EXH. ANNEXED- 3-4
AFFIRMATION IN OPPOSITION & EXH. ANNEXED 5-6
AFFIRMATION IN REPLY 7
This Honorable Court Decides and Orders after oral argument, Defendants' Motion to Renew pursuant to CPLR 2221 (e) is hereby GRANTED; the underlying, timely made pursuant to CPLR § 4405, post-verdict motion pursuant to CPLR § 4404 (a), CPLR § 4110-B, and CPLR § 4405 to set aside the jury verdict of $3,175,000 for a new trial is hereby DENIED.
This court exercises its discretion in the interest of justice under the circumstances herein where the jury has spoken to Sua Sponte conform the pleading to the proof to add allegation of latent susceptibility to injury to conform to the evidence adduced at trial pursuant to CPLR § 3025 (c), having found no surprise nor prejudice to Defendant, particularly where Defendant similarly requested charge for aggravation of pre-existing condition. Such exercise of judicial discretion under such circumstances where the jury has spoken, is granted freely in the interest of justice (see Suburban Lawn Serv. v Allstate Ins. Co., 68 Misc.2d 1010, 1012 [Nassau Dist Ct 1972], Murray v New York, 43 N.Y.2d 400, 405 [1977]; Dittmar Explosives, Inc. v A. E. Ottaviano, Inc., 20 N.Y.2d 498, 502 [1967]), or on appeal for the first time, see Diemer v Diemer, 8 N.Y.2d 206, 211 [1960]; Dampskibsselskabet Torm A/S v P. L. Thomas Paper Co., 26 A.D.2d 347, 352 [1st Dept 1966]; Kimso Apts., LLC v Gandhi, 24 N.Y.3d 403, 412-414 [2014], citing Pittsford Gravel Corp. v Zoning Bd. of Perinton, 43 A.D.2d 811, 812 [4th Dept 1973]; Harbor Assoc., Inc. v Asheroff, 35 A.D.2d 667 [2d Dept 1970]; Di Rosse v Wein, 24 A.D.2d 510, 511 [2d Dept 1965], and Weinstein-Korn-Miller, NY Civ Prac ¶¶ 3025.27, 3025.31).
Here, a latent susceptibility to injury as charged in PJI 2:283 was proven at trial. Dr. Kaisman, as a treating physician and medical expert witness testified that though the bulge is present in both the MRIs from before and after the subject accident, Plaintiff could have had the disc bulge without pain (tr. at 19, ln 18-25; see also tr. at 13, ln 20-24; see also tr. at 18, ln 9-11). The mere presence of the bulge in MRI is insufficient to be deemed a condition in and of itself. The expert witness further testified to the radiating pain and spasms evident from plaintiff's physical palpating examinations after the subject accident (tr. at 17, ln 24 - tr. at 18, ln 5). Thus, PJI 2:283 Charge being read to the jury conformed to the proof adduced and thus not reversible error.
Aggravation of pre-existing disease or infirmities was not Plaintiff's theory of its case for damages and therefore not plead, as is generally required, which must also be proven before recovery therefore can be allowed (Behan v Data Probe Intern., Inc., 213 A.D.2d 439 [2d Dept 1995]; see Ruggiero v Banner Glass & Mirror Corp., 232 A.D.2d 395, 396 [2d Dept 1996]; see Lee v All City Van Lines, Inc., 131 A.D.3d 454 [2d Dept 2015]; see generally PJI 2:283; see also De Mento v Nehi Beverages, Inc., 55 A.D.2d 794, 795 [3d Dept 1976], citing Von Sydow v Long Beach Bus Co., 249 AD 838 [2d Dept 1937]). The Fourth Department has held that a charge on aggravation of pre-existing injury may be given notwithstanding plaintiff has not pleaded the theory, where defendant has raised the issue although the Third Department has rejected this approach where there is a "wholesale failure by plaintiff to plead and prove the theory" (Anderson v Dainack, 39 A.D.3d 1065 [3d Dept 2007 ]; see Mazurek v Home Depot U.S.A., Inc., 303 A.D.2d 960 [4th Dept 2003]; see Hancock v 330 Hull Realty Corp., 225 A.D.2d 365 [1st Dept 1996]). Here, Plaintiff did not fail to plead nor was this theory proven, therefore Defendant was not misled nor prejudiced. Nevertheless, even where a plaintiff had adequately pleaded aggravation of a pre-existing condition, a PJI 2:282 charge is improper without proof (Ogunti v Hellman, 281 A.D.2d 404, 405 [2d Dept 2001]). Herein, however, Defendant requested the PJI 2:282 charge at the charging conference over the objection of Plaintiff, which triggered Plaintiff's request for the latent susceptibility PJI 2:283 charge, which was objected to by Defendant. Nevertheless, the jury was charged with both PJI 2:282 and PJI 2:283.
Defendant argues that back pain and leg pain in the PJI 2:282 charge should have been instead substituted by disc bulges. Defendant argued that Jurist should know the difference between symptom versus condition, truly failing to appreciate the judicially unethical impropriety of insinuating Jurist's pharmaceutical professional expertise with her judicial role at trial. Presiding Jurist is not to be a witness of any stripe and is ethically bound to not insinuate her non-judicial expertise nor her facts into any matter before her in the carrying out of her judicial duties and is mandated therefore to conform the proof adduced at trial to the jury to the applicable law of the case. Treating and Expert witness Dr. Kaisman's testimony to the jury is consistently replete with back pain and leg pain being the conditions that were treated, not disc bulges, which he testified can exist anatomically on an MRI without being a treatable condition. Whereas back pain and leg pain are the conditions that Dr. Kaisman as a treating physician of Plaintiff as well as an expert witness testified to the jury at trial that back pain and leg pain were the conditions being treated.
Further, Defendant argues that it is the court's failure to have provided it an opportunity to object to back pain and leg pain in the PJI 2:282 charge prior to reading to the jury is harmful reversible error, which caused the jury to render an excessive verdict of $3,175,000. This jurist's trial notes in conjunction with the full trial transcript (in particular page 291) establishes: the jury was released for lunch at 1:45 p.m. and ordered to return at 2:15 p.m.; The reporter and both counsels were in the courtroom by 2:15 p.m.; whereas jury charges were read to the jury from 2:42 p.m. to 2:55 p.m.. Thus, both parties had between 2:15 p.m. to 2:42 p.m., twenty-seven (27) minutes, to make any objections or concerns on the record to all matters including jury charges prior to the jury being summoned to be read the jury charges. Nevertheless, This Court was resolute in the PJI 2:282 charge as read to the jury as being consistent and reflective of the proof adduced at trial and the law as applied in PJI 2:282, which the Defendant requested over Plaintiff's objection. It is solely within the discretion of the judge to apply the proof adduced at trial to the law as it so finds applicable. Although aggravation was not plead, nevertheless it is clear that after due deliberation the jury rejected PJI 2:282 aggravation charge in its failure of proof. Defendant provided no expert witness nor medical records to prove that there was a pre-existing condition caused by an alleged prior accident. The jury's verdict makes evident that the error in charging 2:282 did not impact the jury's decision-making, rendering its charging not harmful reversible error. On the contrary, there would have been a more persuasive argument for harmful reversible error, where the charge would not have been read to the jury. Here PJI 2:282 inclusion was provided to the jury and the jury rejected aggravation for a failure of proof. If the jury had considered PJI 2:282 aggravation as proven, the jury would have returned with a lower verdict awarded to the Plaintiff. It is with this logic and common sense that the verdict was not affected by the harmless error of aggravation being charged but not having been plead and that the verdict was reached upon a "fair interpretation of the evidence" (Micallef at 381; Rodgers v New York City Tr. Auth., 70 A.D.3d 917 [2d Dept 2010]). Thus, under the circumstances herein PJI 2:282 jury instructions did not harmfully affect the verdict.
Jury verdict award of $3,175,000 is found to be reasonable compensation and not excessive.
The jury gave of their time and diligent attention and have spoken through their deliberative verdict in favor of Plaintiff. Here substantial justice has been done. For the foregoing reasons, and in the interest of justice, this jury's verdict shall not be disturbed.
The foregoing constitutes the opinion, decision, and order of This Honorable Court.
SO ORDERED: