FILED: KINGS COUNTY CLERK 03/29/2019
`FILED: KINGS COUNTY CLERK 03m
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`‘NYSCEF DOC. NO. 116
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`NYSCEF DOC. NO. 116
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`INDEX NO. 505647/2015
`INDEX NO- 505647/2015
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`R<.C«.IV«.D \IYSCEF: 04/01/2019
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`At Part 84 of the Supreme Court of
`the State of New York, held in and
`for the County of Kings, at the
`Courthouse, located at Civic Center,
`Brooklyn, New York on
`the 27th day of March 2019
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`PRESENT:
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`HON. CAROLYN E. WADE,
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`_________________________________________________________________________x
`Martine Anne Bi-sagni,
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`Just1ce
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`Z4 / ~
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`/ ,
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`‘
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`Plaintiff,
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`,
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`Index No. 505647/2015
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`-against—
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`L A Squires—Sussman,
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`--------------_-----___-_----___;_-_--___--__---____-__-_-_-_----1.......X
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`Defendants.
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`DECISION and ORDER
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`Recitation, as required by CPLR §2219(a), of the papers considered in the review of
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`plaintiff Martine Anne Bisagni’s motion:
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`Order to Show Cause/Notice of Motion and
`Affidavits/Affirmations Annexed.........................
`Cross-Motion and Affidavits/Affirmations.........
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`Memorandum of Law...........................................
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`Answering Affidavits/Affirmations......................
`Reply Affidavits/Affirmations..............................
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`FILED: KINGS COUNTY CLERK 03/29/2019
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`INDEX NO. 505647/2015
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`Upon the foregoing cited papers and after oral argument, plaintiff Martine Anne Bisagni
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`moves, pursuant to CPLR 4404 (a), for an Order setting aside the jury verdict rendered on January
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`25, 2018.
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`The underlying action was commenced by Martine Anne Bisagni (“Plaintiff”) to recover
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`damages for personal injuries she allegedly sustained in a motor vehicle accident on February 26,
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`2013. By an Order dated April 7, 2017, Plaintiff was granted summary judgment on the issue of
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`liability upon defendant L A Squires-Sussman (“Defendant”)’s default. The damage-only trial
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`commenced on January 17, 2018 and concluded on January 25, 2018.
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`It must be noted that,
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`during the trial, on the record, Plaintiff and Defendant entered into a hi-low agreement whereby
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`Plaintiff would receive a minimum of $135,000.00 and a maximum of $750,000.00.
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`The jury returned a verdict finding that Plaintiff did not sustain a serious injury as a result
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`of thesubject accident. Pursuant to the hi-low agreement, Plaintiff would recover $135,000.00.
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`Following the verdict, Plaintiff filed the instant motion to set aside the verdict on February 13,
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`2018, arguing that it was against the weight of the credible evidence. After the instant motion
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`was filed, which was originally returnable on April 6, 2018, Plaintiff diScharged her attorney,
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`resulting in at least four adjournmentsl of this motion upon her repeated representation that “no
`attorney would take [her] case.” The matter was marked final on October 26, 2018. Plaintiff,
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`against this Court’s directive, proceeded to seek, consent from Defendant to request this Court for
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`a further adjournment. On January 11, 2019, the matter was marked fully submitted.
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`On January 22, 2019, Plaintiff, who remained pro se, filed an amended motion to the
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`instant motion without leave of the Court. Upon a brief review, said amended motion is a detailed
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`‘ Respectively on April 6, 2018, June 15, 2018, September 14, 2018 and October 26, 2018.
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`FILED: KINGS COUNTY CLERK 03/29/2019
`FILED: KINGS COUNTY CLERK 03572019
`'Nysc:
`3F DOC. NO. 116
`NYSCEF DOC. NO. 116
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`INDEX NO. 505647/2015
`INDEX NO- 505647/2015
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`account of her entire eXperience relating to this accident, including the medical expenses and
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`allegedly misconduct by her former attorney that occurred after the trial. This amended motion
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`cannot be considered by this Court, as it was filed without leave of the Court after the instant
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`motion was already marked fully submitted on January 11, 2019 (see Woodward Med.
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`Rehabilitation, P. C. v State Farm Fire and Cas. Co., 34 Misc 3d 138(A) [App Term 2011] [“A
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`party who concludes that a motion is defective or insufficient should apply for and obtain leave
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`to withdraw or amend it”]).
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`In the instant motion, Plaintiff contends that Defendant replied solely upon. the testimony
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`of Dr. Richard Lechtenberg, a neurologist who examined her on April 26, 2016. Plaintiff argues
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`that while Dr. Lechtenberg testified that her MRI did not reveal any structural damage to her
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`brain, he admitted that he diagnosed her with “status post concussion.” Plaintiff further avers that
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`Defendant did not present any medical expert to disprove the medical testimony from Plaintiff’s
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`orthopedist, Dr. Steven Touliopoulos, that she sustained a significant limitation of use of her
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`knees as a result of the accident.
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`Defendant, in opposition, submits that neither the alleged traumatic brain injury nor the
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`alleged knee injury is supported by emergency room records. Defendant also contends that
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`Plaintiffs attorney-referred doctors who testified at trial were consulted at least one and a half
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`years after the accident. Defendant asserts that Plaintiff offered no documentary evidence relating
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`to the intervening one and a half years between the accident and her visits to the attomey-referred
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`doctors. Furthermore, Defendant points out that Plaintiff failed to provide a trial transcript for
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`the instant motion.
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`“To set aside a jury verdict as against the weight of the evidence, it must be concluded
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`that the evidence so preponderated in favor of the movant that the verdict could not have been
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`reached on any fair interpretation of the evidence” (Jun Suk Seo v Walsh, 82 AD3d 710, 711 [2d
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`Dept 2011], citing Scua'era v. Mahbubur, 39 AD3d 620, 620 [2d Dept 2011]; Lolik v Big V
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`Supermarkets, Inc, 86 NY2d 744, 746 [1995]; Nicastro v Park, 113 AD2d 129, 134 [2d Dept
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`1985]). “[T]he trial court must afford the party opposing the motion every inference which may
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`properly be drawn from the facts presented, and the facts must be considered in a light most
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`favorable to the nonmovant (Tapia v Dattco, Inc. , 32 AD3d 842, 844 [2d Dept 2006], citing. Hand
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`v Field, 15 AD3d 542, 543 [2d Dept 2005]).
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`Here, first, given the nature of the issues raised on this particular motion, the absence of a
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`transcript, or relevant portions thereof, precluded a meaningful review (Gorbea v Decohen, 118
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`AD3d 548, 549 [lst Dept 2014]). But even taking Plaintiffs contentions into consideration, the
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`evidence did not preponderate so heavily in her favor that the jury could not have reached
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`the verdict in favor of the Defendant by any fair interpretation of the evidence (Easton v
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`Falzarano, 102 AD3d 826, 826-27 [2d Dept 2013]; see also Daniels v Simon, 99 AD3d 658, 659
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`[2d Dept 2012]; Rosenfeld v Baker, 78 AD3d 810, 811 [2d Dept 2010]. A fair interpretation of
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`the evidence supports the jury’s conclusion that, based on the evidence before it, Plaintiff did not
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`sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject
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`motor vehicle accident (see Rosenfeld, at 812; see also Handwerker v Dominick L. Cervi, Inc. , 57
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`AD3d 615, 616 [2d Dept 2008]; Marina v Cunningham, 44 AD3d 912, 913 [2d Dept 2007]).
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`In addition, “[w]here, as here, conflicting expert testimony is presented, the jury is entitled
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`to accept one expert's opinion, and rcj ect that of another expert” (Morales v Interfaith Med. Ctr,
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`71 AD3d 648, 650 [2d Dept 2010]; see also Liounis v New York City Tr. Auth., 92 AD3d 643,
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`644 [2d Dept 2012]).
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`“It is for the jury to make determinations as to the credibility of the
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`witnesses, and it is accorded great deference, as it had the opportunity to see and hear the
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`FILED: KINGS COUNTY CLERK 03/29/2019
`FILED: KINGS COUNTY CLERK 03572019
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`‘NYSCEF DOC. NO. 116
`NYSCEF DOC. NO. 116
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`INDEX NO. 505647/2015
`INDEX NO- 505647/2015
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`R<.C«.IV«.D \IYSCEF: 04/01/2019
`RECEIVED NYSCEF: 04/01/2019
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`witnesses” (Davison v New York City Tr. Auth., 63 AD3d 871, 872 [2d Dept 2009]). “The jury's
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`resolution of the credibility issues in favor of the defendant is «supported by a fair interpretation
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`of the evidence and, thus, may not be disturbed” (Daniels v Simon, 99 AD3d 658, 659 [2d Dept
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`2012]). The jury has spoken and I see no basis to disturb its determination (see Wallace v City of
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`New York, 108 AD3d 760, 764 [2d Dept 2013]).
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`Based on the above, plaintiff Martine Anne Bisagni’s motion to set aside the jury verdict
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`rendered on January 25, 2018 is DENIED.
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`This constitutes the Decision and Order of the court.
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`HON. CAROLYN E. WADE
`AC ING SUPREME COURT JUSTICE
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`ACTING SUP '
`COURT JUSTICE
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