To be Argued by:
LAWRENCE HEISLER
Supreme Court of the State of New York
Appellate Division – First Department
O
MIRIAM LEVY OATES, as Administratrix of the Estate of
RACHEL LEVY, deceased, and MIRIAM LEVY OATES,
Individually and HADASSAH LEVY,
Plaintiffs-Respondents,
-against-
NEW YORK CITY TRANSIT AUTHORITY,
Defendant-Appellant,
-and-
MANHATTAN AND BRONX SURFACE TRANSIT OPERATING
AUTHORITY, MTA BUS COMPANY, METROPOLITAN
TRANSPORTATION AUTHORITY and “JOHN DOE”
who is intended to be the bus operator,
Defendants.
REPLY BRIEF FOR DEFENDANT-APPELLANT
LAWRENCE HEISLER
Executive Assistant General Counsel
Attorney for Defendant-Appellant
130 Livingston Street
Brooklyn, New York 11201
(718) 694-3851
lawrence.heisler@nyct.com
Of Counsel:
LAWRENCE HEISLER
ANNA J. ERVOLINA
Bronx County Clerk’s Index No.: 302214/2007
APPELLATE INNOVATIONS
(914) 948-2240
8992
Printed on Recycled Paper
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ..............................................................................................iii
PRELIMINARY STATEMENT ......................................................................................... 1
POINT I
PLAINTIFFS FAILED TO REFUTE THE AUTHORITY’S
SHOWING THAT ON THIS RECORD NO RATIONAL
JURY COULD INFER NEGLIGENCE ................................................................. 3
Case law Weighs in Favor of Dismissal ...................................................................... 3
Plaintiffs’ “Facts” Do Not Support Any Inference of Negligence ......................... 5
POINT II
PLAINTIFF FAILED TO PROVE THAT DECEDENT
SUSTAINED EITHER PRE-IMPACT TERROR OR
CONSCIOUS PAIN AND SUFFERING. IN ANY EVENT,
THE $300,000 THE JURY AWARDED PLAINTIFF FOR
RACHEL’S PAIN AND SUFFERING IS EXCESSIVE ..................................... 11
Introduction—the gist of plaintiff’s claim on conscious pain and suffering ....... 11
No different rule for pedestrians dying under motor vehicles ............................... 11
Failing the test of Common Sense, or why plaintiff’s forensic
experts does not hold up to scrutiny ......................................................................... 12
The continuing vitality of Cummins v. County of Onondoga ............................... 13
Plaintiff’s cases are distinguishable ............................................................................ 15
The Deference owed an expert—what plaintiff’s cases actually show ................. 17
Other cases leading nowhere ...................................................................................... 18
The Pain and Suffering award is excessive ............................................................... 19
i
POINT III
GIVEN THAT SHE WAS NOT A DISTRIBUTEE,
PLAINTIFF HADASSAH LEVY WAS NOT ENTITLED
TO RECOVER ANY DAMAGES FOR THE DEATH OF
HER DAUGHTER. AND WHILE THE AUTHORITY
FAILED TO OBJECT AT TRIAL TO THE WRONGFUL
DEATH CAUSE IT MAY OBJECT NOW BECAUSE THE
ERROR WAS FUNDAMENTAL. FURTHER, IT THE
COURT WISHES TO PENALIZE THE AUTHORITY
FOR ITS SILENCE IT SHOULD REQUIRE IT TO PAY
PLAINTIFF THE COST OF ENGAGING THE
ECONOMIC EXPERT TESTIFYING TO HADASSAH’S
LOSS ............................................................................................................................. 21
Plaintiff’s other claims of prejudice do not hold water ........................................... 22
CONCLUSION ................................................................................................................... 24
ii
TABLE OF AUTHORITIES
Page
Cases:
Allen v. Stokes,
260 A.D. 600 (1st Dept. 1940) .................................................................................. 3, 5
Bacic v. New York City Tr. Auth.,
64 A.D.3d 526 (2nd Dept. 2009) .................................................................................. 9
Cassano v. Hagstrom,
5 N.Y.2d 643 (1959) ....................................................................................................... 6
Cummins v County of Onondaga,
84 NY2d 322, 642 NE2 1071, 618 NYS2d 615 (1994) ...................................... 13, 14
Cummins v. County of Onondaga,
198 A.D.2d 875 (4th Dept. 1993), aff’d 84 N.Y.2d 322 (1994) .............................. 19
Delosovic v. City of New York,
43 Misc.2d 801 (Sup. Ct. NY Cty. 1989),
aff’d 174 A.D.2d 407 (1st Dept. 1991) ....................................................................... 11
Ferguson v. City of New York,
73 A.D.3d 649 (1st Dept. 2010) .................................................................................. 18
Gersten v. Boos,
57 A.D.3d 475 (2nd Dept. 2008) ................................................................................ 19
Kevra v Vladagin,
96 A.D.3d 805 (2nd Dept. 2012) ................................................................................ 14
Kim v. New York City Transit Auth.,
27 A.D.3d 332 (1st Dept. 2007) .................................................................................. 17
Klein v. Long I. R. Co.,
303 N.Y. 807 (1952) ....................................................................................................... 4
iii
Klein v. Long I. R. Co.,
199 Misc. 532 (N.Y. Sup. Ct. 1950) .............................................................................. 5
Mehra v. Bentz,
529 F.2d 1137 (2nd Cir. 1975) ....................................................................................... 4
Melendez v. Parkchester Med. Servs., P.C.,
76 A.D.3d 927 (1st Dept. 2010) .................................................................................... 3
Montas v. JJC Constr. Corp.,
92 A.D.3d 559 (1st Dept. 2012) .................................................................................. 10
Phiri v. Joseph,
32 A.D.3d 922 (2nd Dept. 2006) .......................................................................... 13, 14
Public Adm'r of Kings County v. U.S. Fleet Leasing, Inc.,
159 A.D.2d 331 (1st Dept. 1990) ................................................................................ 11
Rodd v. Luxfer,
72 A.D.2d 535 (2nd Dept. 2000) ................................................................................ 15
Rugova v. Davis,
112 A.D.3d 404 (1st Dept. 2013) .................................................................................. 9
Scantlebury v. Lehman,
305 N.Y. 713 (1953) ................................................................................................... 4, 5
Segal v. City of New York,
66 A.D.3d 865 (2nd Dept. 2009) .................................................................... 15, 16, 19
Stein v. Lebowitz-Pine View Hotel, Inc.,
111 A.D.2d 572 (3rd Dept. 1985) ......................................................................... 18, 19
Trillo v. Gerry,
135 A.D.2d 625 (2nd Dept. 1987) ................................................................................ 4
Wank v. Ambrosino,
307 N.Y. 321 (1954) ................................................................................................. 4, 10
Zurita v. McGinnis,
7 A.D.3d. 618 (2nd Dept. 2004) ................................................................................. 12
iv
Rules, Laws and Statutes:
CPLR 5501(C) ....................................................................................................................... 20
EPTL 5-4.1. ........................................................................................................................... 21
v
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: FIRST DEPARTMENT
-------------------------------------------------------------------------x
MIRIAM LEVY OATES, as Administratrix of the Estate of
RACHEL LEVY, deceased, and MIRIAM LEVY OATES,
Individually, and HADASSAH LEVY,
Plaintiffs-Respondents, Index No.
-against- 302214/07
THE NEW YORK CITY TRANSIT AUTHORITY,
Defendant-Appellant,
-and-
MANHATTAN & BRONX SURFACE TRANSIT OPERATING
AUTHORITY, MTA BUS COMPANY, METROPOLITAN
TRANSPORTATION AUTHORITY
and “JOHN DOE”, who is intended to the bus operator.
Defendants.
-------------------------------------------------------------------------x
APPELLANT’S REPLY BRIEF
The New York City Transit Authority submits this reply, in support of
its appeal, arguing for the dismissal of the suit, or of certain items of damages,
as well as the reduction of others. To the extent that the Authority does not
specifically address certain points, in relies on its opening brief.
PRELIMINARY STATEMENT
The fundamental flaw underlying plaintiff’s case remains. Plaintiff still
cannot prove that the driver’s negligence caused the accident. It is indisputably
true that the Authority’s bus ran over decedent. But plaintiff cannot show
more. We know nothing about what the driver saw, should have seen, could
1
have seen. Nor do we know from which direction decedent was approaching,
and where precisely she was headed when the bus struck her. Nothing plaintiff
says, not the invective, not the inflammatory accusations of crime and cover-up
can obscure this reality.
Nor can plaintiff overcome her other failure—the inability to show that
decedent suffered any conscious pain and suffering. Here, too, plaintiff’s case
rests on several unwarranted assumptions: the first, that decedent was
conscious when the bus ran over her; the second, that she did not die instantly,
but survived for an appreciable period. And plaintiff cannot justify the size of
the award, $300,000 for what, at most, were several seconds of conscious pain.
Plaintiff is right to note that the Authority failed to point out at trial that
Hadassah Levy, decedent’s mother did not qualify as a distributee and hence
was not entitled to any recovery under the statute. The issue is what cost the
Authority should bear for the error, one it shared with plaintiff and the trial
court.
Rather than impose what amounts to a $550,000 fine, a vastly
disproportionate penalty measured against the inconvenience plaintiff suffered,
the Court should opt for a more sensible one. The Court should require the
Authority to compensate plaintiff for expense plaintiff incurred in hiring an
expert to outline Hadassah Levy’s alleged pecuniary losses. Anything more
would be harsh and punitive.
2
POINT I
PLAINTIFFS FAILED TO
REFUTE THE AUTHORITY’S
SHOWING THAT ON THIS
RECORD NO RATIONAL JURY
COULD INFER NEGLIGENCE.
Before they could take advantage of the Noseworthy doctrine and the
lesser burden it imposed on wrongful death claimants, Plaintiffs first had to
make “a showing of facts from which negligence can be inferred” Melendez v.
Parkchester Med. Servs., P.C., 76 A.D.3d 927 (1st Dept. 2010).
Plaintiffs did not have to “exclude or eliminate every other possible
cause or point out the particular act or omission which caused the injury” Allen
v. Stokes, 260 A.D. 600, 603 (1st Dept. 1940)(internal citations omitted). But
they did have to submit more than just rank speculation and conjecture to carry
their burden.
Plaintiffs failed to carry that burden. And they failed to refute the
Authority’s showing that, on this record no reasonable inference of negligence
can be drawn.
Caselaw Weighs in Favor of Dismissal
In its opening brief, the Authority relied on case law that where, as here,
there is no direct evidence of how the accident happened, a jury should only be
allowed to infer negligence if the driver could have seen the decedent in time to
3
avoid the accident. See Wank v. Ambrosino, 307 N.Y. 321 (1954); Mehra v. Bentz,
529 F.2d 1137 (2nd Cir. 1975); Trillo v. Gerry, 135 A.D.2d 625 (2nd Dept. 1987).
The cases Plaintiffs cite far from undermining this point, actually
support it. They apply the same legal principles upheld in the cases the
Authority cited. In fact, the cases Plaintiffs rely on were noted in the dissenting
opinion of the Authority’s key case, Wank, supra.
In Plaintiffs’ cited cases however, a reasonable jury could conclude that
the drivers were negligent because the drivers admitted that they had a full and
unobstructed view of the area where the decedent would have been prior to the
accident and could have taken action to avoid the accident [See Scantlebury v.
Lehman, 305 N.Y. 713 (1953); Klein v. Long I. R. Co., 303 N.Y. 807 (1952)].
Thus, in Scantlebury, supra, where the decedent was struck while crossing
the street, the jury was justified in concluding that defendant was negligent
because the driver admitted that “he saw the whole roadway in front of him
and to the right and left” before the accident.
Likewise, in Klein, supra, where the decedent was struck by a train while
negotiating a train crossing, the defendants’ negligence could be inferred
because the block operator saw the decedent minutes before the accident at the
subject train crossing yet failed to act. Moreover, the train’s engineer and
fireman who had been traveling along a straight path immediately prior to the
accident, admitted that they “had a full view of the entire crossing.” Yet they
4
never blew the whistle before reaching the crossing. Klein v. Long I. R. Co., 199
Misc. 532, 534 (N.Y. Sup. Ct. 1950).
And in Allen, supra, an inference of negligence was reasonable because
the decedent was found wedged in an indentation in the front of the radiator
grillwork of a taxicab driven by the defendant who was drunk. Other facts also
permitted a rational jury to find negligent. First, an eyewitness placed the victim
and driver within the same vicinity. Second, the cab’s grillwork was broken and
pushed back against the radiator. Third, the front license plate was bent
backward. These facts, “tended to lead fairly and reasonably to the conclusion
drawn and to exclude any other hypothesis, fairly and reasonably” Id. at 601.
Here, in sharp contrast to Scantlebury, Klein, and Allen, Plaintiffs failed to
produce any competent evidence that the bus driver, Mr. Brady, could have
spotted the decedent, or even if he could, that he could have acted in time to
avoid the accident.
Plaintiffs’ “Facts” Do Not Support Any Inference of Negligence
None of the “facts” set forth at pages 27 through 29 of Plaintiffs’ brief
reasonably permit an inference of negligence. For instance, where and in what
condition the decedent was found speaks only to whether there was contact
with the bus. It sheds no light on whether the decedent was visible to the driver
in time for the driver to avoid the accident. Likewise, the fact that Mr. Brady
submitted to a urine test during the course of his employment as a bus driver as
5
part of the Authority’s standard accident protocol, has nothing to say on the
question of negligence. Indeed, Plaintiff should not have mentioned it all.
As the Authority predicted, Plaintiffs’ entire theory of liability hinges on
the speculative opinion of their expert, Mr. Phillips. Plaintiffs responded to the
Authority’s showing that Mr. Phillips’ opinion is conclusory in a single
sentence, stating that any such contention “speaks to the evidence’s weight”
Respondent Br., p. 29. However, a “weight of the evidence” analysis conducted
when the jury is confronted with conflicting expert testimony does not come into
play here, where the Authority challenges the very competency of Phillips’
testimony. If the Authority is correct, if Mr. Phillips’ opinion is speculative, the
Court should not have allowed the jury to hear in the first place. There is no
competent opinion to weigh.
“It is settled and unquestioned law that opinion evidence must be based
on facts in the record or personally known to the witness …He cannot reach
his conclusion by assuming material facts not supported by evidence” Cassano v.
Hagstrom, 5 N.Y.2d 643 (1959). Here, Plaintiffs never addressed the Authority’s
showing that Mr. Phillips’ opinion assumes material facts that are not based on
facts in the record or his personal knowledge.
Consider Mr. Phillips’ conclusion that the bus driver could have seen the
decedent because she was on the sidewalk facing the bus when she was struck
by the bus as it pulled out of the bus stop. To explain how the bus could have
6
struck the decedent while she was on the sidewalk, Mr. Phillips assumes that
the bus’ right front corner was over the sidewalk. However, Mr. Phillips readily
admits that he has no idea how the bus was parked at the bus stop on the day
of the accident. Rather, he assumes Mr. Brady’s bus covered the sidewalk
because on the single occasion he visited the bus stop, six years after the
accident, the front of the other buses that stopped there covered the sidewalk.
Remarkably, Mr. Phillips assumed the same held true for Mr. Brady’s bus even
though none of the buses he observed was the same make and model as the
one Mr. Brady operated more than half a decade before.
Nor can one downplay the significance of Phillips’s conclusion. Whether
the bus’ right front corner was over the sidewalk is undoubtedly a material fact.
Without it, Plaintiffs’ theory of negligence falls apart because there is no other
explanation for how the decedent was struck while on the sidewalk. Thus, Mr.
Phillips’ assumption is patently unreasonable because it is based on nothing
more than speculation and conjecture.
Plaintiffs’ attempt to rely on Mr. Brady’s testimony as evidence that the
bus was over the sidewalk is equally unavailing. At page 28 of their brief, citing
to the bus driver’s testimony at page A-186 of the appendix, Plaintiffs state that
“Brady ‘curbed the bus’ which meant that his tires were physically touching the
curb and the front right corner of his bus was over the sidewalk.” However,
Mr. Brady never gave such testimony. What he actually said is as follows:
7
Q: Okay. Now, when you approached the bus
stop at this intersection – I mean on Henry
Hudson Parkway southbound, what did you
do with respect to the bus to pick up
passengers at that location?
A. I curbed the bus.
Q. And what do you mean by “curb the bus”?
A. You put the bus as close as possible to the
curb.
Q. Now, at any time when you are curbing the
bus, did the tires on the bus go over the
curb.
A. No, they did not.
Q. Okay. After you get the bus as close to the
curb as possible, what do you do next?
A. You open the doors.
(A-186).
Accordingly, the assumption that part of the bus was over the sidewalk
stems solely from Plaintiffs’ expert – not Mr. Brady’s testimony as Plaintiffs
would otherwise have this Court believe.
Plaintiffs also never addressed the Authority’s showing that their theory
that the decedent was propelled into the bus’ path is entirely speculative. Mr.
Phillips concedes that at the time of impact the bus was moving extremely slow
because it was pulling out of the bus stop from a stopped position. Yet he
never reconciled how such an extraordinarily low speed impact could result in
8
such a significant thrust forward. Nor did he explain how such a low speed
impact could propel the decedent - who was supposedly standing on the
sidewalk facing the front of the bus immediately before impact - with such
force that she landed face down, in the opposite direction from which she was
standing, so that her head was pointing in the same direction as the front of the
bus.
Mr. Phillips’ baseless assumptions render his opinion incompetent to
establish that Mr. Brady could have seen the decedent and avoided the
accident. This is particularly true given Mr. Phillips’ admission that the bus Mr.
Brady was operating had several significant blind spots in areas where the
decedent might have been prior to the accident.
The fact that Plaintiffs are pursuing a wrongful death action does not
mean that the Noseworthy doctrine magically converts speculative theories of
liability into competent evidence, even if the theory is touted by an expert. See
Rugova v. Davis, 112 A.D.3d 404, 405 (1st Dept. 2013)(“Plaintiff may not avail
herself of the Noseworthy doctrine so as not to be held to as high a degree of
proof, since plaintiff failed to make a showing of facts from which negligence
can be inferred”)(internal citations omitted); Bacic v. New York City Tr. Auth., 64
A.D.3d 526, 527 (2nd Dept. 2009)(expert’s entirely speculative testimony that
the train operator should have seen decedent did not constitute proof from
which negligence could reasonably be inferred).
9
Without Mr. Phillips’ unfounded theories, “there is nothing at all to
show how [the accident] came about” Wank v. Ambrosino, 307 N.Y. 321 (1954).
It is just as possible that the decedent tripped and fell in the roadway because
she lost her balance running to catch the bus as it pulled out of the bus stop
while carrying grocery bags. Therefore, any inference of negligence is patently
unreasonable and this case should be dismissed. See generally Montas v. JJC Constr.
Corp., 92 A.D.3d 559, 560 (1st Dept. 2012)(“the record must render the other
possible causes sufficiently remote to enable the trier of fact to reach a verdict
based upon the logical inferences to be drawn from the evidence, not upon
speculation”)(internal quotations and citations omitted).
10
POINT II
PLAINTIFF FAILED TO PROVE
THAT DECEDENT SUSTAINED
EITHER PRE-IMPACT TERROR
OR CONSCIOUS PAIN AND
SUFFERING. IN ANY EVENT,
THE $300,000 THE JURY
AWARDED PLAINTIFF FOR
RACHEL’S PAIN AND
SUFFERING IS EXCESSIVE.
Introduction—the gist of plaintiff’s claim on conscious pain and suffering
Plaintiff claims that all pedestrians killed by buses or cars suffer some
degree of pain and suffering. It follows that the only issue here is not whether,
but how much compensation plaintiff is entitled for decedent’s pain and
suffering. Neither case law nor common sense supports plaintiff.
No different rule for pedestrians dying under motor vehicles.
The cases in our opening brief establish that pedestrians run over by
vehicles are not exempt from the burden of proving conscious pain and
suffering. And where they fail to carry that burden, the Courts routinely dismiss
their suits.
The plaintiff in Delosovic v. City of New York, 143 Misc.2d 801, 812 (Sup.
Ct. NY Cty. 1989), aff’d 174 A.D.2d 407 (1st Dept. 1991) couldn’t prove that
decedent, crushed by a truck, endured any measurable pain, so the Court
dismissed the suit.
The plaintiff in Public Adm'r of Kings County v. U.S. Fleet Leasing, Inc., 159
A.D.2d 331 (1st Dept. 1990) couldn’t prove that decedent who died when he
11
was struck by a car suffered any appreciable pain. The Court dismissed that
suit, too.
As it did Zurita v. McGinnis, 7 A.D.3d. 618 (2nd Dept. 2004). There,
another pedestrian who died under the wheels of a car couldn’t recover because
he failed to prove that he suffered any conscious pain. By failing to show that
decedent, “...cried out, spoke, or made intentional movements following the
impact of McGinnis's vehicle...” plaintiff failed to make out a case.
Failing the test of Common Sense, or why plaintiff’s forensic experts does not hold up
to scrutiny.
The Common Law reflects common sense. Why should one assume that
a pedestrian struck by a bus or car is more likely to experience pain and
suffering than another accident victim trapped in a car or other vehicle,
plummeting down a mountain before landing in a pool of water?
Consider a typical scenario, leading to the death of an occupant in a car
or other vehicle: A passenger in car “A” dies when another vehicle strikes his
own. The passenger endures the initial shock of the collision; its force may hurl
him against the interior of the car, or entirely out of it. The chain of events that
leads to the passenger’s death exceed in number and duration the typical
pedestrian fatality where a bus knocks down and runs over a pedestrian.
It thus seems plain that a typical victim riding in a car or bus endures
more trauma and for a greater period, than does the typical pedestrian struck by
a bus or car. Yet the Courts routinely hold that unless plaintiff proves
12
conscious pain and suffering, the courts will dismiss the claim. There is no
reason to treat a “survival” claim brought to recover for the death of a
pedestrian any differently.
The continuing vitality of Cummins v. County of Onondoga
Cummins v. County of Onondaga, 198 A.D.2d 875 (4th Dept. 1993), aff’d 84
N.Y.2d 322 (1994), remains the paradigm case. The description in the Appellate
Division of the facts that led to decedent’s death, underscores the point made
here: the trauma that causes a car passenger to lose his life may be more
protracted than the one suffered by the victim of a simple “pedestrian
knockdown.”
In Cummins, decedent’s “…car spun off the shoulder of the road, turned
over as it dropped down a steep embankment, and came to rest in a pond of
water adjacent to the road…” The Appellate Division concluded that the trial
court was right to dismiss the suit. Plaintiff was unable to prove that decedent
was conscious, even though his medical witness insisted that plaintiff was still
alive when the car hit the water.
Other cases tread along the same path, dismissing cases where plaintiff
failed to prove that a decedent suffered conscious pain, even if the trauma of
the accident was a relatively protracted one.
Phiri v. Joseph, 32 A.D.3d 922 (2nd Dept. 2006) provides an apt example.
In Phiri, decedent died when a bus struck the car he was riding as a passenger.
13
An eyewitness did not see decedent move or breath. The bus driver also saw no
sign of life; no one heard decedent make a sound.
Defendant moved for summary judgment, arguing that plaintiff failed to
prove that decedent sustained any conscious pain and suffering. The Second
Department agreed:
"Without legally sufficient proof of
consciousness following an accident, a claim for
conscious pain and suffering must be dismissed"
(Cummins v County of Onondaga, 84 NY2d 322, 325,
642 NE2 1071, 618 NYS2d 615 [1994]). Mere
conjecture, surmise, or speculation is insufficient to
sustain a claim to recover damages for conscious
pain and suffering (id.).
Id at p.523
Phiri is also significant because the majority rejected not only plaintiff’s
claim that decedent had suffered pain after the impact; it also rejected plaintiff’s
claim for pre-impact terror. The dissent argued that the bus driver had honked his
horn as the bus approached the car, allowing one to infer that decedent
endured periods of fright and terror as he realized that the bus was bearing
down on him. But the majority concluded that reconstructing what decedent
might have sensed, what he might have feared amounted to conjecture.
Kevra v Vladagin, 96 A.D.3d 805 (2nd Dept. 2012) builds on Phiri’s
insights. It granted summary judgment in another case where decedent a
passenger in a car died when his vehicle collided with another. Once again, the
14
lack of any proof that decedent evidenced any consciousness persuaded the
Appellate Division to grant summary judgment:
…evidence that the decedent did not make
any sound or movement, and that he appeared not
to be breathing, during the approximately one hour
in between the occurrence of the accident and the
official time of death.
Plaintiff’s cases are distinguishable.
The cases plaintiff cites do not aid her cause. Rodd v. Luxfer, whose
correct citation is 272 A.D.2d 535 (2nd Dept. 2000) addressed the radically
different scenario, where decedent was still alive, though unresponsive when an
ambulance arrived 40-minutes after the accident. Another 4-hours would elapse
before decedent died.
Here, of course, decedent was found dead at the scene, with no facts to
allow a fact finder to do anything but guess about how long she’d survived.
Segal v. City of New York, 66 A.D.3d 865 (2nd Dept. 2009), plaintiff’s
trump also proves a disappointment. The facts in Segal contrast sharply with
our own.
First, unlike our case, a witness in Segal testified to precisely what
happened:
52-year-old Hinda Segal’s skull was crushed
and she was killed by falling tree limbs. Walking with
her daughter on a Brooklyn street one fine summer
morning in July 2003, a storm broke out and
overhead tree branches broke off and hit Mrs. Segal
in the head knocking her to the ground.
15
More critically, plaintiffs there provided palpable and objective indicia
that decedent suffered terror before she was struck by the tree limb, and
conscious pain thereafter.
Her daughter, Shifra Berger, had been walking
with her hand in hand. They saw the tree falling and
Shifra saw her mother try to get the branches out of
her face, heard her mother call out, saw her mother
get hit and felt her mother squeeze her hand as she lay
dying on the sidewalk.
New York Personal Injury Blog (Hochsfelder),
http://www.newyorkinjurycasesblog.com/2009/10/articles/wrongful-death/substantial-
awards-for-brief-periods-of-predeath-pain-and-suffering-in-two-new-appeals-court-
decisions/{Accessed February 9, 2015}
The elements of a successful claim for pain and suffering are present in
abundance in Segal: the corroboration that decedent was aware of an impending
catastrophe; the cry of distress, the squeeze of the hand, as decedent lay dying
on the sidewalk. Each one alone would have allowed the jury to conclude that
decedent appreciated the impending catastrophe and suffered the physical pain
of its aftermath. Given that a jury had a reasoned basis for crediting plaintiff’s
expert that decedent endured 8-10 seconds of pain, the Court refused to
dismiss a pain and suffering award, although cutting it sharply.
Here by contrast, we have nothing—other than the words of plaintiff’s
expert, Dr. Taff, who assured the jury that unless one was vaporized in an
explosion, or perhaps an atomic blast, one would perforce endure some
conscious pain and suffering.
16
Taff’s conclusion failed on a number of counts:
• It contradicted testimony he’d given at earlier trial, where he
stated that in the absence of an autopsy or other confirmatory
proof, one couldn’t offer an informed opinion about how long a
pedestrian struck by a bus endured conscious pain and suffering;
• It clashed with the account the coroner gave, insisting that it was
impossible to say that decedent suffered any conscious pain;
• It lacked any underlying facts to support the conclusion, other
than the expert’s faith statement that all accidents, except the rare
case where one is vaporized instantly produce pain and suffering.
The Deference owed an expert—what plaintiff’s cases actually show
Plaintiff nevertheless insists that the jury was entitled to credit Dr. Taff, ,
and if they thought his account believable, that ends the matter.
Not so, and the case plaintiff cites, Kim v. New York City Transit Auth.,1
(P.33, respondent’s brief) undermines her argument. In Kim, the Court
dismissed a verdict in plaintiff’s favor, in part, because it discounted the words
of plaintiff’s expert. The Kim Court found that the expert’s “…conclusion was
speculative and not supported by anything in the record.”
1 27 A.D.3d 332 (1st Dept. 2007)
17
Simply put, Dr. Taff’s conclusions are the product of nothing more
convincing or forceful than his say-so. It bears as much relation to forensic
science as does a work of fiction, describing the sensations, thoughts, and
musings of a murder victim shot in the head.2 The story may work as fiction,
but it bears as much connection to reality, legal or otherwise as Dr. Taff’s
confabulations of what decedent must have sensed and felt, does here. See
Ferguson v. City of New York, 73 A.D.3d 649 (1st Dept. 2010)
Other cases leading nowhere
Stein v. Lebowitz-Pine View Hotel, Inc., 111 A.D.2d 572 (3rd Dept. 1985)
also proves a fickle ally. The decedent in Stein was swimming in a pool at a
hotel in the Catskills when the lifeguards left their post for 8 minutes. When
they returned they discovered decedent at the bottom of the pool, dead.
Plaintiff’s theory in Stein was that decedent had struck his head, passed out and
fallen into the pool. The pathologist in Stein testified that decedent has suffered
for several minutes before he died. An appellate court in Stein sustained an
award for conscious pain and suffering.
Plaintiff thinks Stein has something to say to our facts. Here, too,
although no one actually saw decedent lose consciousness, plaintiff believes
that her pathologist could offer a conclusion that decedent was sensible to pain
for a period.
2 A Bullet to the Brain, Tobias Wolff,
18
The analogy doesn’t work because Stein no longer exerts persuasive
force. In Cummins v. County of Onondaga, 198 A.D.2d 875 (4th Dept. 1993), aff’d
84 N.Y.2d 322 (1994), the Appellate Division expressly repudiated it’s
reasoning, holding that, “… To the extent [Stein] holds that an absence of
proof with respect to unconsciousness is sufficient to infer consciousness, we
decline to follow it…”
Cummins reinforces the point the Authority made in its opening brief. By
failing to provide affirmative proof that decedent was conscious when the bus
struck her, plaintiff has no case.
The Pain and Suffering award is excessive
Segal v. City of New York, demonstrates that the $300,000 verdict for
decedent’s 2-5-seconds of pain and suffering is excessive. The decedent in
Segal, clearly aware that a large tree limb was about to strike her, survived for as
much as 10-seconds. Yet the Court sustained an award of only $375,000. Given
the spotty state of the evidence here, plaintiff cannot lay claim to even a
fraction of that amount.
Gersten v. Boos, 57 A.D.3d 475 [2nd Dept. 2008), also highlights the
excessiveness of our award. There, the Court reduced a $1,000,000 award to
$350,000 for 5-10 minutes of pain after a car accident and some indications of
responsiveness while in a coma over the next 11 days before death {Details
from New York Personal Injury blog, {Hochsfelder} accessed February 15,
19
2015 http://www.newyorkinjurycasesblog.com/2009/10/articles/wrongful-
death/substantial-awards-for-brief-periods-of-predeath-pain-and-suffering-in
two-new-appeals-court-decisions/
If this Court does not dismiss outright plaintiff’s claim for Rachel Levy’s
conscious pain and suffering, it should reduce it to an award that comports
with reasonable compensation (See, CPLR 5501(C).
20
POINT III
GIVEN THAT SHE WAS NOT A
DISTRIBUTEE, PLAINTIFF
HADASSAH LEVY WAS NOT
ENTITLED TO RECOVER ANY
DAMAGES FOR THE DEATH OF
HER DAUGHTER. AND WHILE
THE AUTHORITY FAILED TO
OBJECT AT TRIAL TO THE
WRONGFUL DEATH CAUSE IT
MAY OBJECT NOW BECAUSE
THE ERROR WAS
FUNDAMENTAL. FURTHER, IT
THE COURT WISHES TO
PENALIZE THE AUTHORITY
FOR ITS SILENCE IT SHOULD
REQUIRE IT TO PAY
PLAINTIFF THE COST OF
ENGAGING THE ECONOMIC
EXPERT TESTIFYING TO
HADASSAH’S LOSS.
It was plaintiff’s burden—not the Authority’s—to prove that she
qualified to recover under EPTL 5-4.1. Hadassah, decedent’s mother, cannot
carry that burden, because the law does not recognize her as a distributee.
Plaintiff concedes as much, but argues that by failing to challenge her status at
trial, the Authority has waived the right to challenge it on appeal. Plaintiff
blames the Authority for failing to point out the obvious, that Hadassah had no
wrongful death claim in the first place.
But one can turn the same argument on its head. What explanation does
plaintiff have for ignoring the EPTL and prosecuting a suit on behalf of a
21
person who the law flatly declares is ineligible to recover? Now, clearly plaintiff
wasn’t suing on Hadassah Levy’s behalf as part of some strategy to outwit the
Authority. Plaintiff simply made a mistake. So did the Authority. So did the trial
court.
Plaintiff is right to complain that the Authority’s lapse caused her to
incur the additional expense of hiring an economist to testify about Hadassah’s
pecuniary losses. But the remedy isn’t to affirm a judgment that the law
declares a nullity. It is to compel the Authority to cover the costs plaintiff
suffered because of the Authority’s error.
Plaintiff’s other claims of prejudice do not hold water
Plaintiff cites to other examples of prejudice. Plaintiff says that had the
Authority educated her about the nuances of the law of Wrongful Death,
informing her that Hadassah, decedent’s mother did not qualify as a distribute,
plaintiffs might have opted for a different litigation strategy. Miriam Levy
Oates, decedent’s daughter, and a true distributee might have renounced her
share. By doing so, she would have allowed her Grandmother, Hadassah to
assume the status of a distributee and recover the share the jury actually
awarded her.
Plaintiff’s argument fails because it is inconceivable that Miriam,
decedent’s daughter would ever have renounced her share. She wouldn’t have
renounced it because she assumed that it was much larger than her
22
Grandmother’s was. When plaintiff summed up to the jury, she demanded
$500,000 in damages for Miriam (See A-949, lines 8-13). But for Hadassah, she
only demanded $239,000 (A-948). Why should one think that Miriam would
surrender a potential $500,000 recovery for herself, so that her grandmother
could recover an award less than half its size?
The conclusion remains the same. Plaintiff shares with the Authority—
and the trial court—the blame for pressing a cause of action the law declares a
nullity. Plaintiff may have some justice on her side in complaining that the
Authority’s silence caused her to incur the expense of hiring an economist.
That expense is the most that plaintiff can justifiably claim. The $550,000
damage award, untenable as a matter of law, is too large a penalty to impose on
the Authority for a lapse it shared with the other actors at trial.
23
CONCLUSION
Plaintiff still has not explained how the accident happened, let alone
what role the Authority’s negligence played in causing it. The claim that
decedent experienced conscious pain has nothing in the record to support it.
And Hadassah Levy’s wrongful death claim cannot stand because the law does
not allow her to recover. Finally, the awards, even if they were not a nullity are
too high. If the Court does not dismiss the suit, or order a new trial, it should
reduce the damage awards.
Dated: Brooklyn, New York
March 3, 2015
Lawrence Heisler
Attorney for Defendant-Appellant
130 Livingston St. Rm 1147
Brooklyn, New York, 11201
(718) 694-3851
_________________________
Lawrence Heisler
Anna J. Ervolina
Of counsel
24
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