FILED: ERIE COUNTY CLERK 10/11/2017 09:22 AM
`FILED: ERIE COUNTY CLERK 10m2017 09:22 AM
`
`NYSCEF DOC. NO. 51
`NYSCEF DOC. NO. 51
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`INDEX NO. 805512/2015
`INDEX NO- 805512/2015
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`R«.C«.IV«.D \IYSCEF: 10/10/2017
`RECEIVED NYSCEF: 10/10/2017
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`STATE OF NEW YORK
`
`SUPREME COURT: ERIE COUNTY
`
`JAMES PIEDMONT,
`
`Plaintiff,
`
`‘VS'
`
`RAYMOND P. MANGOLD and
`
`SARAH A. MANGOLD
`
`Defendants.
`
`Decision
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`Index No. 805512/2015
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`
`
`STEPHEN C. CIOCCA, ESQ.
`Attorney for Plaintiff
`
`ROBERT E. GALLAGHER, JR, ESQ.
`Attorney for Defendants
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`Colaiacovo, J.
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`The above-captioned matter was tried before this Court on June 12th and
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`13th of this year. The jury returned a verdict in favor of the Plaintiff and
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`awarded a total of six hundred and eighteen thousand nine hundred and
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`twenty-three dollars ($618,923). Defendants have now moved pursuant to
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`CPLR §4404 and §4406 for an Order setting aside and/0r reducing the verdict
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`because the “defendants believe that the verdict, as rendered, exceeds what is
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`fair and reasonable compensation .
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`.
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`)3
`. Gallagher Affirmation at par. 8.
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`FILED: ERIE COUNTY CLERK 10m2017 09:22 AM
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`NYSCEF DOC. NO. 51
`NYSCEF DOC. NO. 51
`
`INDEX NO. 805512/2015
`INDEX NO- 805512/2015
`
`
`
`
`
`R«.C«.IV«.D \IYSCEF: 10/10/2017
`RECEIVED NYSCEF: 10/10/2017
`
`STATE OF NEW YORK
`
`SUPREME COURT: ERIE COUNTY
`
`JAMES PIEDMONT,
`
`Plaintiff,
`
`‘VS'
`
`RAYMOND P. MANGOLD and
`
`SARAH A. MANGOLD
`
`Defendants.
`
`Decision
`
`Index No. 805512/2015
`
`
`
`STEPHEN C. CIOCCA, ESQ.
`Attorney for Plaintiff
`
`ROBERT E. GALLAGHER, JR, ESQ.
`Attorney for Defendants
`
`Colaiacovo, J.
`
`The above-captioned matter was tried before this Court on June 12th and
`
`13th of this year. The jury returned a verdict in favor of the Plaintiff and
`
`awarded a total of six hundred and eighteen thousand nine hundred and
`
`twenty-three dollars ($618,923). Defendants have now moved pursuant to
`
`CPLR §4404 and §4406 for an Order setting aside and/0r reducing the verdict
`
`because the “defendants believe that the verdict, as rendered, exceeds what is
`
`fair and reasonable compensation .
`
`.
`
`)3
`. Gallagher Affirmation at par. 8.
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`lof4
`1 of 4
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`FILED: ERIE COUNTY CLERK 10/11/2017 09:22 AM
`FILED: ERIE COUNTY CLERK 10m2017 09:22 AM
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`NYSCEF DOC. NO. 51
`NYSCEF DOC. NO. 51
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`INDEX NO. 805512/2015
`INDEX NO- 805512/2015
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`R«.C«.IV«.D \IYSCEF: 10/10/2017
`RECEIVED NYSCEF: 10/10/2017
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`
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`Plaintiff opposes the motion on the basis that “the verdict rendered by the jury
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`was fair and appropriate, did not shock the conscience, and was in accordance
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`with the evidence presented over the course of the trial.” Ciocca Affidavit at
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`par. 9.
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`Decision
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`The Defendants’ Motion having been duly submitted, and after due
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`consideration of said Motion with attached exhibits, as well as Plaintiffs
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`opposition papers, it is the Court’s opinion that the jury’s verdict should remain
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`undisturbed.
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`Defendant correctly points out that damages in a personal injury verdict
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`“should not be reviewed as excessive .
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`.
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`. unless the amount shocks the
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`conscience .
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`.
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`. of the court, is unconscionable, or has no basis in fact from the
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`record (citations omitted).” Gallagher Affirmation at par. 13. The parties
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`agree, and cite to the same source, that the Court’s discretion in this regard
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`“should be exercised sparingly.” Gallagher Affirmation at par. 13 and Ciocca
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`Affidavit at par. 13 citing 4 Weinstein-Korn-Miller N.Y. Civ. Prac. Par.
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`4404.10.
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`FILED: ERIE COUNTY CLERK 10/11/2017 09:22 AM
`FILED: ERIE COUNTY CLERK 10m2017 09:22 AM
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`NYSCEF DOC. NO. 51
`NYSCEF DOC. NO. 51
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`INDEX NO. 805512/2015
`INDEX NO- 805512/2015
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`RtCtIVtD \IYSCEF: 10/10/2017
`RECEIVED NYSCEF: 10/10/2017
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`“A jury verdict in favor of a plaintiff should not be set aside as contrary to
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`the weight of the evidence unless the evidence so preponderated in favor of the
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`defendant that the jury could not have reached the verdict by any fair
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`interpretation of the evidence (citations omitted). Whether a jury verdict
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`should be set aside as contrary to the weight of the evidence does not involve a
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`question of law, but rather requires a discretionary balancing of many factors
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`(citations omitted).
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`In making this determination, the Court must proceed
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`with considerable caution, ‘for in the absence of indications that substantial
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`justice has not been done, a successful litigant is entitled to the benefits of a
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`favorable jury verdict’ (citation omitted). Generally,
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`‘[f]act finding is the
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`province of the jury,’ whose ability to see and hear the witnesses should be
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`accorded deference (citation omitted).” Acosta v. City: of New York, 84 A.D.3d
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`706, 708 (2d Dept. 2011).
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`There is nothing in the record of this case that would motivate the Court
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`to invade the province of the jury. The jury heard from treating physician, Dr.
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`Marc Fineberg, and a physical therapist regarding the Plaintiff s injuries and
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`treatment. The jury also heard from a defense expert who testified generally
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`regarding the plaintiffs injuries, that Dr. Fineberg’s findings were accurate,
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`that the Plaintiffs surgery was “reasonable and necessary”, and that the
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`Plaintiffs injuries and symptoms were related to the accident. See Ciocca
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`3
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`FILED: ERIE COUNTY CLERK 10/11/2017 09:22 AM
`FILED: ERIE COUNTY CLERK 10m2017 09:22 A
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`NYSCEF DOC. NO. 51
`NYSCEF DOC. NO. 51
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`INDEX NO. 805512/2015
`INDEX NO- 805512/2015
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`R«.C«.IV«.D \IYSCEF: 10/10/2017
`RECEIVED NYSCEF: 10/10/2017
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`Affidavit at par. 33. Not only did the jury hear about the Plaintiffs present
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`condition, but it also heard about how he could be affected in the future.
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`The Court agrees with the Plaintiff that “the argument being made
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`appears to simply request the Court to impose its judgment about case value
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`over that of a unanimous jury." Ciocca Affidavit at par. 14. The Court is not
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`prepared to so.
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`Therefore. it is hereby ORDERED. that the Motion to set aside andlor
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`reduce the verdict be, and hereby is. DENIED.
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`Hon. Emilio Colaiacovo. J.S.C.
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`Dated:
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`October 1Q}: 2017
`Buffalo. New York
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