`FILED: BRONX COUNTY CLERK 09/27/2017 03:36 PMFILED: BRONX COUNTY CLERK 10/12/2017 09:41 AM
`FILED: BRONX COUNTY CLERK (091212017 09:35 :
`I
`
`NYSCEF DOC. NO. 99
`
`NYSCEF DOC. NO. 93NYSCEF DOC. NO. 99
`
`
`
`INDEX NO. 20436/2015EINDEX NO. 20436/2015E
`INDEX NO- 20436/20153
`
`
`
`
`
`R«C«IV«D NYSCEF: 09/22/2017
`
`RECEIVED NYSCEF: 09/27/2017RECEIVED NYSCEF: 10/12/2017
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF BRONX
`
`------------------------------------------------------- x
`JESSIE MAY MOSLEY,
`
`20436/2015E
`
`Plaintiff,
`
`ORDER WITH
`NOTICE OF ENTRY
`
`-against—
`
`E.H.J. LLC and NUNEZ DEPOT HARDWARE,
`
`Defendants.
`_______________________________________________________ X
`
`PLEASE TAKE NOTICE, that attached hereto is a true and accurate copy
`
`of the Order of the Honorable Ruben Franco dated September 25, 2017 and
`
`entered in the Clerk’s Office of the within Court on September 27, 2017.
`
`Dated:
`
`New York, New York
`September 27, 2017
`
`
`
`Attorneys for Defendants
`E.H.J. LLC and NUNEZ DEPOT HARDWARE
`
`125 Maiden Lane, 17th Floor
`New York, New York 10038
`(212) 480—3030
`Our File No: LIG 15180/sik/807053
`
`TO:
`
`BURNS & HARRIS, ESQS.
`Attorneys for Plaintiff
`JESSIE MAY MOSELY
`
`233 Broadway, Suite 900
`New York, New York 10279
`212-393—1000
`
`lof8
`1 of 8
`
`

`

`
`FILED: BRONX COUNTY CLERK 09/27/2017 03:36 PMFILED: BRONX COUNTY CLERK 10/12/2017 09:41 AM
`
`
`—m2017 93:3 77:
`.I
`
`NYSCEF DOC. NO. 93NYSCEF DOC. NO. 99
`NYSCEF Doe. no. 92
`
`INDEX NO. 20436/20153
`
`INDEX NO. 20436/2015EINDEX NO. 20436/2015E
`
`RECEIVED NYSCEF: 09/27/2017RECEIVED NYSCEF: 10/12/2017
`
`mm We ib©//&37//%@17
`
`fl
`
`SU‘PRlEitva COURT OF THE STATE OF NEW YORK
`
` r” 5 CBUNTY or BRONX - ms PART 2.6
`
`
`t
`”W ‘p
`.
`.........................._____“,____________
`\W/ JESSIE MAY MOSI.,E Y.
`
`,Plaintil‘l'.
`
`Index No. 20436f3015E
`
`—against-
`
`MEMOMNDUM
`DECISION/ORDER
`
`E.H.J. 'LLC‘ and NUNEZ DEPOT l~IARDWARE.
`
`Defendants.
`
`On the morning ot’August 15.2014. the then nearly-70—year-old (now 73) plaintil‘l‘ visited
`
`del‘ettdants’ hardware store to have a house key made. Upon exiting] the store. she fell on the
`
`sidewalk and fractured her ankle and exacerbated a back condition. On May 15. 2015. ajury
`
`awarded her the amount of$350.000 for past pain and sul’l'ering, and $1.3 million for future pain
`
`and suffering. The defendants nowmove. pursuant to CPLR § 440% inter alia. to set aside the
`
`verdict on liability as against: the weight ol’the evidence: to set aside the verdict for past and
`
`future pain and suffering unless plaintiff accepts damages in a lesser amount to be determined by
`
`the court; and. to set aside the verdict and for a new trial on the ground that the court erroneously
`
`admitted in evidence a lumbar MRI Report and allowed plaintiffs expert to testil’y to its content.
`
`it is undisputed that Ms. Mosley suffered a fractured ankle. and that her rare-existing
`
`severe spinal stenosis worsened. However. how these injuries occurred. exactly where they
`
`occurred, who is responsible. and in the case other back, when it occurred — are matters that
`
`were hotly contested. during the trial. Defendant Nunez attempted to cast doubt on Ms. Mosley‘s
`
`claim that she fell in front of his business by testifying that Ms. Mosley never appeared in his
`
`store to inform him or any 01‘ his employees. ol’the fall. Moreover, defense counsel endeavored
`
`to show that Ms. Mosley did not know what caused her to fall. and that if‘shc fell in [root of
`
`defendants business. it was in a location other than on the defect in the sidewalk. Defense
`
`2 of 8
`
`

`

`
`
`
`
`INDEX NO. 20436/2015EINDEX NO. 20436/2015E
`
`FILED: BRONX COUNTY CLERK 09/27/2017 03:36 PMFILED: BRONX COUNTY CLERK 10/12/2017 09:41 AM
`INDEX NO. 20436/20153
`FILED; BRONX COUNTY CLERK U 3 [Fl ,_
`
`NW mm- 1m- 92
`i
`'
`‘ mmW Q)@//%27//%@37
`
`NYSCEF DOC. NO. 93NYSCEF DOC. NO. 99
`
`RECEIVED NYSCEF: 09/27/2017RECEIVED NYSCEF: 10/12/2017
`
`counsel supported this contention by proffering that Ms. Mosley was not certain of exactly where
`
`she fell because on her way home after the accident. she told a friend that she fell in front of a
`
`drug store. and also, because it was not until three weeks after the incident that she returned to
`
`defenclants‘ business to survey the front ofthe location. whereupon, she concluded that the
`
`defective sidewalk in front ofthe business, must have caused her to fall.
`
`"lihejury weighed the evidence. and the credibility of Ms. Mosley. as well that of
`
`defendant Nunez. and chose to accept Ms. Mosley's version regarding, how and where she. fell.
`
`The court finds that thejury reached its conclusion based on a fair interpretation ofthe evidence
`
`(see Williams v. Citv of New York 109 AD3d 744 [13‘ Dept 2013]. The First Department has
`
`made it clear that ajury verdict should be set aside as against the weight of the evidence, “only
`
`where it seems palpably wrong and it can be plainly seen that the preponderance is so great” that
`
`thejury could not have reached their conclusion upon any fair interpretation ofthe evidence" (sec
`
`Bernstein v. Red A 1e Suermarkets. 227 ADZd 264. 265 l1"l Dept 1966], quoting Cornier v.
`
`
`Spaena~ 101 AD2d 141. 149). Thejury also found that by failing to repair the defective sidewalk
`
`in front oftheir business, where. it found that Ms. Mosley fell. defendants were responsible for
`
`the injuries that she suffered.
`
`Upon a review ofthe record, the court cannot conclude that the evidence presented by
`
`defendants weighed so heavily in their favor. that the verdict could not have been reached on any
`
`fair interpretation ofthe evidence (see Grassi v. Ulrich. 87 NY2d 954 [1906]; Lolik v. .1312 V
`
`Supermarkets. Inc, 86 NY2d 744 [1995]). And, viewing the evidence, as the court must. in the
`
`
`light most favorable to plaintiff, the prevailing party (see Yass v. Liverman, 233 AD2d 1 10 [1"
`
`Dept 1996]). the court declines to disturb the jury‘s verdict on the issue of liability.
`
`Defendants ask the court to set aside the verdict and order a new trial because. they assert
`
`l'J
`
`3 of 8
`
`

`

`
`
`INDEX NO. 20436/2015EINDEX NO. 20436/2015E
`
`FILED: BRONX COUNTY CLERK 09/27/2017 03:36 PMFILED: BRONX COUNTY CLERK 10/12/2017 09:41 AM
`
`.1
`it
`INDEX NO. 20436/20153
`NW m.. 13mm 92
`7
`WW W‘: WWgBP
`
`NYSCEF DOC. NO. 93NYSCEF DOC. NO. 99
`
`RECEIVED NYSCEF: 09/27/2017RECEIVED NYSCEF: 10/12/2017
`
`the court erroneously admitted in evidence an MRI report and permitted plaintit’t‘s expert to give
`
`testimony on the content ol’the report. in rendering his opinion as to plaintiff’s injuries.
`
`[Defendants posit that such testimony was hearsay in that the person who prepared the report was
`
`not available for cross examination.
`
`In the cases that defendants cite to support their position.
`
`the X—rays or MRfls were not in evidence (Kovacev V. Ferreira Bros. Contractin i
`
`
`
`. 9 AD3d 253
`
`[ls’ Dept 2004]; Wagman v. Bradshaw. 292 AD2d 84 [2”‘5 Dept 3002]); l-ilambsch v. New York
`
`Citv Transit Authoritv. 63 NYch 723 [NS-4],). Here. the M Rl films and the report ol‘the
`
`radiologist were. both admitted in evidence because the court determined that they complied in all
`
`respects with the requirements of CPLR § 3 I 22-21. Defendants’ objection relates to testimony
`
`provided by Dr. Gabriel Dassa. plaintiff’s medical expert. regarding the report of radiologist. Dr.
`
`Meltzer. of an MRI ofplaintit‘t‘s lumbar spine taken in November. 2014.
`
`Hearsay testimony presented by an expert is admissible for the purpose of permitting the
`
`expert to set forth the basis of his or her opinion, so long as the hearsay material is reliable and it
`
`is not the principal basis for the expert’s opinion (see m V. Wlasiuk. 32 AD3d 674 [3’d Dept
`
`2006]; Borden v. BEE! 92 AD2d 983 [3rd Dept 1983]). The case of Waaman V. Bradshaw. 292
`
`AD2d 84 f2"d Dept 2002]). provides guidance on this matter. and helps this court to conclude that
`
`ot’great import to its determination ot’this issue. is the fact that Dr. Dassa examined the plaintiff
`
`and reviewed her medical records, and thus, made it apparent that he did not rely solely on the
`
`report to arrive at his conclusion regarding plaintiff‘s spinal stenosis. Additionally. the report
`
`was comprehensive and detailed regarding the images. as well as in its findings. Moreover. Dr.
`
`Dassa studied the actual MRI film and confirmed his independent finding of spinal stenosis.
`
`rendering Dr. Meltzcr's repon reliable since he too diagnosed a severe stenosis.
`
`Indeed. Dr
`
`Dassa employed the MRl lilm to locate For thejurors, plaintil’l‘s condition. The court concludes
`
`Lu
`
`3 31:03 8
`4 of 8
`
`

`

`
`FILED: BRONX COUNTY CLERK 09/27/2017 03:36 PMFILED: BRONX COUNTY CLERK 10/12/2017 09:41 AM
`[E2017 09:35 ;
`l
`
`
`NYSCEF DOC. NO. 93NYSCEF DOC. NO. 99
`NtrsCEF Doc. No. as
`
` L‘J
`
`INDEX NO. 20436/2015EINDEX NO. 20436/2015E
`INDEX NO. 20436/2015:
`
`
`RECEIVED NYSCEF: 09/27/2017RECEIVED NYSCEF: 10/12/2017
`Wtfib WE ”bis/figfl/ébW
`
`that it was proper for Dr. Dassa to make reference during his testimony to the report.
`
`Ms. Mosley is retired and did not require surgery nor hospitalization as a result ofthc
`
`injuries sustained from this accident. None of her treating physicians testified at the trial. The
`
`evidence showed that she suffered a fracture ofthe cuboid bone of the left ankle which.
`
`according to Dr. Dassa. caused her to develop traumatic arthritis in the anklejoint. Dr. Dassa.
`
`who was not the treating physician and examined Ms. Mosley once. two years after the incident
`
`and for the purpose ofthis litigation, testified that although the fracture is healed. the injury to the
`
`ankle. particularly the traumatic arthritis: is permanent. and that ifthe pain to the left ankle
`
`becomes intractable. he would recommend fusion surgery. After the accident. Ms. Mosley was
`
`treated for her ankle by a Dr. Dermskian: the first time was on August 20. 2014. and the last time
`
`was in November, 2014. She had to wear a special boot fora period oftime and attended six
`
`sessions of physical therapy. Dr. Dermskian did not recommend surgery. Ms. Mosley has not
`
`received treatment for her ankle since November, 2014.
`
`The evidence also showed that Ms. Mosley suffered from severe spinal stenosis prior to
`
`the instant accident of August 15. 2014. and an MRI taken on November 29- 20M. indicated that
`
`the stenosis slightly worsened. She had been experiencing back pain for several years prior to the
`
`accident. and. she received a number of epidural injections for this condition. Dr. Dassa testified
`
`that if Ms. Mosley’s back condition remains stable, due to her age and medical condition. he
`
`recommends conservative treatment, not surgery. Ms. Mosley testified that the pain in her lower
`
`back radiates down to her leg. causing an imbalance. and necessitating that she use a cane. to help
`
`her walk.
`
`Ms. Mosley testified that as result ot‘the injuries that she suffered, she has not been able
`
`to clean her apartment as often as she would clean it prior to the accident. Moreover, she is
`
`‘1 S‘Fof7 8
`5 of 8
`
`

`

`
`
`
`
`FILED: BRONX COUNTY CLERK 09/27/2017 03:36 PMFILED: BRONX COUNTY CLERK 10/12/2017 09:41 AM
`F LED; BRONX couu'm CLERK. 0191212017 Q31 to
`
`
`NYSCEF DOC. NO. 93NYSCEF DOC. NO. 99
`NY§§EF Dec.- No. 99
`
` L‘J
`
`INDEX NO. 20436/2015EINDEX NO. 20436/2015E
`INDEX NO- 20436/20153
`
`
`RECEIVED NYSCEF: 09/27/2017RECEIVED NYSCEF: 10/12/2017
`RaeegreenWe: mower/2am
`
`unable to perform that part of her missionary work that involves visiting homebound people and
`
`take them to the hospital tor appointments or to do their house \V01k Also shecan no longer
`
`teach Sunday school because she cannot stand in front ofa class for one hour.
`
`.Ii\dditionally. her
`
`family now has to help her to do some ofher cooking. She continues to do volunteer work at a
`
`Head Start three. and sometimes four. days per week.
`
`The cases are legion. too many to cite. that confirm a trial court‘s authority to reduce. set
`
`aside. or order a new trial when the court deems ajurys damage award to be excessive The
`
`court exercises that authority here, and in so doing. must determine whether the compensation
`
`at Iarded by thej 1113/ deviates materially from what is reasonable under the circumstances (see
`
`Qn_c_e v. Service Center ol’New York, 06 AD3d 483 [1" Dept 2012]; M V’. Citv of New York,
`
`4 ADSd l58 [1“l Dept 2004]: lags; v, Liverman. 233 AD2d l 10 [15‘ Dept 1996]).
`
`In detennining
`
`what is reasonable compensation, it is useful to compare the compensatiiiin found to be
`
`reasonable1n cases where the plaintiff suffered similar iniuries (see St. l’iene .St. \i1ctc r.202
`
`AD2d 479 [2“‘5 Dept l994l).
`
`In Grant v Cin ol New York supra the 53— eat——ol(l plaintitl slipped and lell on ice in a
`
`crosswalk. She suffered a fracture and dislocation of her right ankle resulting in persistent pain
`
`and underwent two surgeries, including the insertion of a plate and screws. followed by months
`
`of physical therapy. An orthopedic surgeon testified that plaintiff would probably experience
`
`arthritic complications in the future due to the cartilage damage in her anklejoin‘t‘. Thejury
`
`awarded plaintiff $5.000 for past pain and suffering. and $10,000. for future pain and suffering
`
`over a live year period. The Appellate Division found that $100,000 for past and 35] 50.000 for
`
`future pain and suffering were more reasonable under the circumstances. Here. plaintil‘fis 73-
`
`years—old, there was no surgery, and the award for future pain and suffering was over “14 r
`
`U1
`
`: 6‘1cof'7 8
`6 of 8
`
`

`

`
`
`
`FILED: BRONX COUNTY CLERK 09/27/2017 03:36 PMFILED: BRONX COUNTY CLERK 10/12/2017 09:41 AM
`
`FILED: BRONX COUNTY CLERK new 7
`NYSCEF DOC. N0. 92
`
`NYSCEF DOC. NO. 93NYSCEF DOC. NO. 99
`
` L‘J
`
`INDEX NO. 20436/2015EINDEX NO. 20436/2015E
`INDEX NO. 20436/2015:
`
`RECEIVED NYSCEF: 09/27/2017RECEIVED NYSCEF: 10/12/2017
`
`3mm We await/raw
`
`years.
`
`in Lurker v. Pellikaan. 23 AD3d 276 9 (1“ Dept 2005). the 67—year-old plaintiff had his
`
`right foot run over by an SUV resulting in a Lisfranc fracture invoh-ting comminuted fractures of
`
`the second and third metatarsal, a widening of the space between the first and second metatarsal.
`
`and displacement ofthe first. third and fourth metatarsal. Plaintiff had surgery requiring a three-
`
`day hospitalization and a one—day visit to the doctor six months later to remove the hardware.
`
`lf’laintiff was not ambulatory for the two months following the surgery, The trial court lowered
`
`the jury's award for past pain and suffering from $450000 to 5475.000. and future pain and
`
`suffering over 15. years front $250,000 to $50,000. The Appellate Division increased the award to
`
`555275.000 for past, and $150,000 for future pain and suffering.
`
`in the instant case. plaintiff did
`
`not require any hospitalization. and at the time oftriaJ had not received treatment for the ankle in
`
`approximately two and one-half years.
`
`in Sienicki v. 760 W. End Ave. Owners. inc, 23 AD3d ‘271 (1" Dept 20015). the
`
`plaintiff. a construction worker. slipped and fell in a hole on a root’that was under construction.
`
`He fractured his ankle. tore some ligaments. underwent two surgeries. and faced the prospect of a
`
`third operation. At the time oft'he trial three years after the accident, plaintiffcontinued to suffer
`
`pain. walked with a limp. and had to use a cane. He played soccer and beach volley ball in his
`
`Spare time. however. after the accident he had to stay home most of the time in order to soak his
`
`leg in cold water and to ele rate it. The Appellate Division determined that the jury award of
`
`5525000 for past pain and suffering and $25000 for 10 years of future pain and suffering was a
`
`material deviation from reasonable compensation. and increased the awards to $100,000 for past
`
`and $150,000 for future. pain and suffering.
`
`Regarding the injury to plaintiff‘s lumbar spine. it is the court‘s view that the credible
`
`evidence adduced at the trial did not establish a significant aggra 'ation ofthe spinal stenosis.
`
`o
`
`6
`
`f7
`7oof 8
`7 of 8
`
`

`

`
`FILED: BRONX COUNTY CLERK 09/27/2017 03:36 PMFILED: BRONX COUNTY CLERK 10/12/2017 09:41 AM
`7
`m . 7 09:35 a.'
`
`
`NYSCEF DOC. NO. 93NYSCEF DOC. NO. 99
`NW mm. m..
`93%
`
`
` L‘J
`
`INDEX NO. 20436/2015EINDEX NO. 20436/2015E
`INDEX NO. 20436/2015:
`
`RECEIVED NYSCEF: 09/27/2017RECEIVED NYSCEF: 10/12/2017
`EEEEWEB NtéEEE; @d/ézflfiéhn
`
`thus. it could not have been a major component ofthejury’s award for past or future pain and
`
`suffering. The radiologist who interpreted the MRI taken on November 29. 2014, reported that
`
`“[s]eyere canal stenosis at [.4-5 has progressed slightly since the previous study." However, it is
`
`not clear the extent to which the accident caused this aggravation. The previous study to which
`
`the radiologist refers appears to have been done on June 1‘). 20l0. and Dr. Dassa. plaintiffs
`
`litigation expert. did not review the films or the report ofthat study.
`
`In a period of more than
`
`four years -— most of it prior to the instant accident —»~~ Ms. Mosley‘is severe back condition
`
`worsened slightly.
`
`It is the court‘s beliefthat based on his one examination of Ms. Mosley,
`
`which was performed approximately two years after the accident, and having reviewed only
`
`limited records of Ms. Mosley’s back condition. Dr. Dassa could not provide information. with
`
`any degree of medical certainty. regarding the extent to which the accident of August 15. 2014.
`
`C21g
`rravated Ms. Mosley’s already severe lumbar stenosis.
`
`The court finds that thejury award for past and future pain and suffering. materially
`
`deviated from what would be reasonable compensation under the circumstances.
`
`Accordingly. the defendants’ motion is granted to the extent that thejury award for past
`
`and future pain and suffering is set aside. and a new trial is ordered on the issue ofdamages
`
`unless. within thirty (30) days of service of a copy ofthis Order. with Notice ofEnlry. plaintiff
`
`stipulates to accept a reduction ofthe award for past pain and suffering to $150,000.00. and for
`
`future pain and suffering to $250,000.00.
`
`The court has considered defendants’ other claims and finds that they lack merit.
`
`This constitutes the Decision and Order of the court.
`
`
`
`
`
`'R—u’ben Franco, J.S_C.
`
`JL
`
`ON. RUBEV Emacs
`
`8 of 8
`
`Dated: September 25‘ 20] 7
`
`