FILED: NASSAU COUNTY CLERK 01/30/2019 04:32 PM
`NYSCEF DOC. NO. 66
`
`INDEX NO. 606719/2015
`O
`RECEIVED NYSCEF: 01/30/2019
`
`SHORT FORM ORDER
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NASSAU
`
`PRESENT: HON. JEFFREY S. BROWN
`JUSTICE
`
`RONI KOTA,
`
`-against- (cid:9)
`
`Plaintiff, (cid:9)
`
`NASSAU COUNTY and ERIN M. REILLY,
`
`X (cid:9)
`
`TRIAL/IAS PART 11
`
`INDEX # 606719/15
`Mot. Seq. 2, 3
`Mot. Date 12.12/12.17.18
`Submit Date 12.17.18
`
`Defendants.
`
`X
`
`The following papers were read on this motion: (cid:9)
`
`Documents Numbered
`
`Notice of Motion/Cross Motion, Affidavits (Affirmations), Exhibits Annexed
`Answering Affidavit
`Memorandum of Law
`
`48, 55
`58
`60
`
`Defendant Erin M. Reilly moves by notice of motion for an order pursuant to CPLR
`4404(a)(1) setting aside the jury's damages awards for past and future pain and suffering (Seq.
`No. 2). Defendant County of Nassau moves by notice of motion to set aside the verdict on both
`liability and damages (Seq. No. 3).
`
`This action arises out of a motor vehicle accident that occurred on October 27, 2014 on
`Shore Road at its intersection with Harbor Road in Port Washington, New York. Plaintiff
`testified that he was operating his motorcycle north along the "S" curved roadway of Shore Road
`within the applicable speed limit when he was struck by Reilly's vehicle.
`
`Defendant Reilly testified that she was waiting in the southbound left-hand turn lane in
`anticipation of turning east onto Harbor Road. After two vehicles headed north on Shore Road
`passed her, she looked in the northbound lanes and saw vehicle headlights well ahead of her
`position. As she proceeded to turn, she felt a light force and then observed plaintiff's motorcycle
`on the ground. As a result of the accident, plaintiff underwent four surgeries, resulting in a
`below knee amputation of his left leg.
`
`-1-
`
`1 of 6
`
`(cid:9)
`(cid:9)
`(cid:9)
`

`

`FILED: NASSAU COUNTY CLERK 01/30/2019 04:32 PM
`NYSCEF DOC. NO. 66
`
`INDEX NO. 606719/2015
`
`RECEIVED NYSCEF: 01/30/2019
`
`Upon trial of this action, the jury returned a liability verdict as against both defendants,
`apportioning 80% fault to the defendant County and 20% fault to defendant Reilly. The jury
`found no comparative liability on the part of the plaintiff. Following the damages trial, the jury
`awarded plaintiff $4,000,000 for past pain and suffering and $15,000,000 for future pain and
`suffering from the time of the verdict to the time the plaintiff could be expected to live. With
`regard to the latter, the jury determined that plaintiffs life expectancy was 24 years.
`
`On this motion, the County contends that based upon the trial testimony, the jury's
`apportionment of liability was against the weight of the evidence. Both plaintiff and Reilly were
`long-time residents of Port Washington and were well-familiar with the subject intersection. The
`County posits that Reilly testified that she was stopped for approximately 20 seconds and could
`see some 500 feet away prior to the accident but she failed to see the plaintiffs motorcycle. The
`County also argues that the documentary evidence shows that of the 115 accident reports
`contained in the Nassau County Department of Public Works (DPW) files from 1977 to 2009,
`only seven, rather than forty as alleged by plaintiff, involved vehicles in the process of making
`left turn onto Harbor Road.
`
`The County thus maintains that the facts adduced at trial establish that it was not
`negligent in the design of the roadway but rather that the collision was caused solely by driver
`negligence because Reilly failed to see what was to be seen and failed to yield the right of way in
`violation of VTL § 1141 . Moreover, the County argues that it was not a proximate or concurring
`cause of this accident, and the jury was asked to improperly speculate as to whether the presence
`of a traffic control device would have altered Reilly's actions.
`
`Defendant Reilly does not contest the jury's liability determination. Rather, she argues
`that the damages awards are excessive in light of the plaintiffs injuries and awards issued in
`comparative cases.
`
`CPLR 4404 (a) provides that "[a]fter a trial. . . the court may set aside a verdict or any
`judgment entered thereon and direct that judgment be entered in favor of a party entitled to
`judgment as a matter of law or it may order a new trial of a cause of action. . . where the verdict
`is contrary to the weight of the evidence, in the interest of justice (cid:9)
`" "[A] jury verdict should
`not be set aside as contrary to the weight of the evidence unless the jury could not have reached
`the verdict by any fair interpretation of the evidence (Lolik v Big V Supermarkets, 86 NY2d 744,
`745-746 [1995]; Nicastro v Park, 113 AD2d 129, 130 [2d Dept 1985])." (Vittiglio v Gaurino,
`100 AD3d 987, 988 [2d Dept 2012]). Likewise, apportionment of fault should not be set aside
`unless it could not have been found on a fair interpretation of the evidence. (Fruendt v. Waters,
`164 AD3d 559 [2d Dept 2018]).
`
`A motion for a new trial "encompasses errors in the trial court's rulings on the
`admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and
`surprise (Matter of De Lano, 34 AD2d 1031, 1032 [3d Dept 1970], aff d 28 NY2d 587 [1971];
`Rodriguez v City of New York, 67 AD3d 884, 885 [2d Dept 2009]; Gomez v Park Donuts, 249
`
`-2-
`
`2 of 6
`
`

`

`FILED: NASSAU COUNTY CLERK 01/30/2019 04:32 PM
`NYSCEF DOC. NO. 66
`
`INDEX NO. 606719/2015
`
`RECEIVED NYSCEF: 01/30/2019
`
`AD2d 266, 267 [2d Dept 1998])" (Allen v Uh, 82 AD3d 1025, 1025 [2d Dept 2011]). "The trial
`court must decide whether substantial justice has been done, and must look to common sense,
`experience, and sense of fairness in arriving at a decision (see, Micallef v Miehle Co., Div. of
`Miehle-Goss Dexter, 39 NY2d 376, 381 [1976]; Bush v International Bus. Machs. Corp., 231
`AD2d 465 [1st Dept 1996])" (Allen, 82 AD3d at 1025).
`
`"The State has a nondelegable duty to keep its roads reasonably safe (Friedman v State of
`New York, 67 NY2d 271, 283 [1986]), and the State breaches that duty 'when [it] is made aware
`of a dangerous highway condition and does not take action to remedy it' (id. at 286)." (Brown v.
`State of New York, 31 NY3d 514, 519 [2018]; see also Highway Law §§ 12, 102, 139). A
`municipality may be deemed negligent in connection with a dangerous traffic condition where
`the municipality is aware of the condition and (1) performs a plainly inadequate traffic safety
`study, or (2) there is no reasonable basis for the decision undertaken by the municipality. (See
`Affleck v. Buckley, 96 NY2d 553 [2001]; Bresciani v. County of Dutchess, 62 AD3d 639 [2d
`Dept 2009]). "[S]omething more than a choice between conflicting opinions of experts is
`required before a governmental body may be held liable for negligently performing its traffic
`planning function." (Affleck, 96 NY2d at 557 [citing Weiss v. Fote, 7 NY2d 579 [1960]).
`
`To establish proximate case in such a case, the plaintiff must show that "the absence of
`safety measures contributed to the happening of the accident by materially increasing the risk, or
`by greatly increasing the probability of the occurrence." (Brown at 520 [quotations omitted]
`[finding liability where there was a pattern of similar accidents and a failure to complete a traffic
`safety study or implement additional safety measures at the subject intersection]). Indeed, "[t]he
`most significant inquiry in the proximate cause analysis is often that of foreseeability" (Ham v
`Jamison, 28 NY3d 524, 530 [2016])." (Id.).
`
`Here, the record supported the jury's determination that the County had been put on
`notice of an unreasonably dangerous condition at the subject intersection and failed to adequately
`complete a safety analysis. The numerous letters complaining about the lack of a signal and
`difficulty in executing a left turn at the subject intersection alerted the County to a situation
`warranting a study. (Affleck, 96 NY2d at 557). Further, Harold Lutz, the County's engineer,
`agreed that during the period from 1987 through 2014, there were approximately 148 accidents at
`the intersection, of which 40 were left turn accidents. He testified that the County conducted a
`number safety studies at the subject intersection. Each of the safety studies resulted in the denial
`of a traffic signal at the intersection.
`
`Mr. Lutz testified that the County based its safety review on the Manual on Uniform
`Traffic Control Devices (MUTCD). When gathering basic data, the MUTCD dictates that eight
`hours of data should be collected, but the County never collected eight hours in any given study.
`Indeed, the County collected two hours or less of data during each study. Mr. Lutz agreed that it
`is usually necessary to collect more than eight hours of data to determine the eight critical hours.
`Additionally, of the eight-hour collection time, four hours should encompass times when traffic
`is at its peak, i.e. when there is the most "intersectional conflict." Also, there was no indication
`
`-3-
`
`3 of 6
`
`

`

`FILED: NASSAU COUNTY CLERK 01/30/2019 04:32 PM
`NYSCEF DOC. NO. 66
`
`INDEX NO. 606719/2015
`
`RECEIVED NYSCEF: 01/30/2019
`
`in the County's records of car counts having been taken during the observation periods and no
`gap analysis was conducted. Nonetheless, on two occasions, County employees recommended
`installation of a traffic light.
`
`Mr. Lutz testified that the County did consider less restrictive remedies than a traffic light
`at that intersection and installed a left turn lane to shorten the crossing distance and to give the
`driver a place of refuge to wait before executing a turn. However, Mr. Lutz conceded that this
`also encouraged left turns at the intersection, which remained uncontrolled.
`
`Plaintiff's expert opined that the County wholly failed to consider the correct factors in
`the safety studies that it conducted and that the studies departed from the requirements of the
`MUTCD and good engineering practice. He characterized the studies as "grossly" inadequate
`with respect to the amount of data collection in particular.
`
`On this record, there was ample evidence to support the jury's resolution of the factual
`issues surrounding liability, including that of proximate cause—findings that the Court will not
`disturb. Contrary to the County's contention, that the jury found defendant Reilly partially
`negligent does not indicate that the evidence did not support a finding of liability against the
`County as well. (Brown, 31 NY3d at 521). These are not mutually exclusive propositions. In
`short, the jury's apportionment of liability was amply supported by the evidence presented
`
`Addressing the issue of damages, a jury's award with respect thereto is considered
`excessive "if it deviates materially from what would be reasonable compensation." (CPLR §
`5501[c]). "The amount of the award of damages. . . is primarily a question for the jury [citations
`omitted] whose determination is entitled to great deference [citations omitted] ." (Crockett v
`Long Beach Med Ctr, 15 AD3d 606 [2d Dept 2005]). While the provisions of CPLR §5501(c)
`specifically refer to the "appellate division," the standard of review is equally applicable to the
`trial courts. (See Barthelemy v. Spivack, 41 AD3d 398 [2d Dept 2007]; Shurgan v Tedesco, 179
`AD2d 805, 805 [2d Dept 1992]; Ramos v City of New York, 169 AD2d 687, 687 [1st Dept
`1991]).
`
`Within the context of reviewing an award for pain and suffering, it is appropriate to
`compare the dollar amount comprising the challenged award to other prior appellate-reviewed
`and approved sums awarded to plaintiffs with similar injuries. (Vatalaro v. County of Suffolk,
`163 AD3d 893 [2d Dept 2018]; Donlon v City of New York, 284 AD2d 13, 15 [1st Dept 2001];
`see also Turuseta v Wyassup-Laurel Glen Corp., 91 AD3d 632, 634 [2d Dept 2012]; Kayes v
`Liberati, 104 AD3d 739, 741[2d Dept 2013]). When the trial court determines that an award is
`excessive, proper procedure mandates a new trial be conditionally ordered as to damages unless
`the plaintiff consents to a reduction. (Barthelemy, 41 AD3d at 399; Zukowski v Gokhberg, 31
`AD3d 633, 634 [2d Dept 2006]; McNeil v MCST Preferred Transp. Co., 301 AD2d 579, 580 [2d
`Dept 2003]).
`
`-4-
`
`4 of 6
`
`

`

`FILED: NASSAU COUNTY CLERK 01/30/2019 04:32 PM
`NYSCEF DOC. NO. 66
`
`INDEX NO. 606719/2015
`
`RECEIVED NYSCEF: 01/30/2019
`
`Here, plaintiff acknowledges that the jury verdict exceeds all previously reported verdicts
`for similar injuries. The court has carefully reviewed the arguments and cases referenced by the
`parties herein and finds that the sum of $4,000,000.00 for past pain and suffering where the
`plaintiff sustained four surgeries, including a foot amputation followed by a below knee
`amputation necessitated by a subsequent infection is not excessive. However, the sum of
`$15,000,000.00 for future pain and suffering deviates materially from that which would currently
`constitute reasonable compensation, thus requiring a remittitur (CPLR §5501[c]).
`
`For these reasons, it is hereby
`
`ORDERED, that the County's motion to set aside the verdict on the issue of liability and
`apportionment of fault is denied; and it is further
`
`ORDERED, that the applications by both defendants seeking a new trial as to damages
`or granting a remiltitur as to the $4,000,000.00 for past pain and suffering are denied, and the
`applications by both defendants seeking a new trial as to damages or granting a remitatur as to
`the $15,000,000.00 for future pain and suffering are granted to the extent that a new trial as to
`future pain and suffering damages is ordered unless, within 30 days after service of a copy of this
`decision and order with notice of entry, the plaintiff shall execute a written stipulation consenting
`to a decrease in the jury's verdict as to future pain and suffering from the sum of $15,000,000.00
`to $7,000,000.00.
`
`This constitutes the decision and order of this Court. All applications not specifically
`addressed herein are denied.
`
`Dated: Mineola, New York
`'join . 2,1, 2019 (cid:9)
`
`ENTER:
`
`Attorneys for Plaintiff
`David Dean, Esq.
`Sullivan Papain Block McGrath & Cannavo, PC
`1140 Franklin Avenue, Ste. 200
`Garden City, NY 11530
`516-742-0707
`5167477350afax.nycourts.gov
`
`FFREY S. BROWN
`J.S.C.
`
`ENTERED
`
`JAN 0 2019
`NASSAU COUNTY
`COUNTY CLERK'S OFFICE
`
`-5-
`
`5 of 6
`
`

`

`FILED: NASSAU COUNTY CLERK 01/30/2019 04:32 PM
`NYSCEF DOC. NO. 66
`
`INDEX NO. 606719/2015
`
`RECEIVED NYSCEF: 01/30/2019
`
`Attorneys for Defendant County
`Leahy & Johnson, PC
`120 Wall Street, Ste. 2220
`New York, NY 10005
`212-269-7308
`
`Attorneys for Defendant County
`John J. Hanley, Esq.
`Jared A. Kasschau
`County Attorney of Nasiau County
`One West Street
`Mineola, NY 11501
`516-571-6063
`5165713058
`5165716604@fax.nycourts.gov
`
`Attorneys for Defendants Pierri & Reilly
`Hammill O'Brien Croutier Dempsey
`Pender & Koehler, PC
`William J. Croutier Jr., Esq.
`6851 Jericho Turnpike, Ste. 250
`Syosset, NY (cid:9)
`11791
`516-746-0707
`5166775475efax.nycourts.gov
`
`-6-
`
`6 of 6
`
`