FILED: QUEENS COUNTY CLERK 09/28/2017 01:23 PM
`NYSCEF DOC. NO. 23
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`INDEX NO. 700736/2015
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`RECEIVED NYSCEF: 09/28/2017
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`006-408
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF QUEENS
`
`ELZA GARZON,
`
`Plaintiff,
`
`-against-
`
`STEVEN BATASH, STEVEN BATASH, M.D., P.O.,
`
`Defendants.
`
`Index No.: 700736/15
`Date Filed: 1/28/15
`
`ORDER WITH NOTICE
`OF ENTRY
`
`Assigned to Honorable
`Justice Joseph Esposito
`
`-X
`
`(cid:127)X
`
`PLEASE TAKE NOTICE that the within is a true copy of a Short Form Order dated
`
`September 25, 2017, and entered in the office of the Clerk of Supreme Court, Queens County,
`
`on September 28, 2017.
`
`Dated: Woodbury, New York
`September 28, 2017
`
`Yours, etc.
`
`KELLER, O'REILLY & WATSON, P.O.
`
`By:_
`
`Wux
`DANIELLE M. MORANDI
`Attorneys for Defendants
`STEVEN BATASH and
`STEVEN BATASH, M.D., P.C.
`242 Crossways Park West
`Woodbury, New York 11797
`(516) 496-1919
`
`TO:
`
`GAIR, GAIR, CONASON, STEIGMAN,
`MACKAUF, BLOOM & RUBINOWITZ
`Attorneys for Plaintiff
`80 Pine Street
`New York, New York 10005
`(212) 943-1090
`
`1 of 8
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`

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`FILED: QUEENS COUNTY CLERK 09/28/2017 01:23 PM
`NYSCEF DOC. NO. 23
`IFILED: QUEENS COUNTY CLERK 09/28/2017 11:05 AMI
`NYSCEF DOC. NO. 22
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`INDEX NO. 700736/2015
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`INDEX NO. 700736/2015
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`Short Form Order.
`
`NEW YORK STATE SUPREME COURT - QUEENS COUNTY
`
`I
`
`Present:
`
`HONORABLE JOSEPH J. ESPOSITO
`Justice
`
`:
`
`X
`
`Part 26
`
`ELZA GARZON,
`
`- against -
`
`STEVEN BATASH and
`STEVEN BATASH, M.D., P.C.,
`
`Plaintiff,
`
`Index •
`Number:
`
`700736/15
`
`Motion Date: 5/4/17
`
`Motion
`Cal. Number: 37
`
`Defendants.
`
`Motion Seq.: 1
`
`-X
`
`The following papers numbered I to 3 were read on this post-trial motion by defendant to set aside
`the juiy verdict in this action as excessive.
`
`Notice of Motion-Affirmation-Exhibits
`Opposition-Affirmation-Exhibits
`Reply(s)
`
`Papers
`Numbered
`
`1
`2
`3
`
`Upon the foregoing papers numbered 1 to 3, it is ordered that the motion pursuant to CPLR 4404(a)
`to set aside the jury verdict in this action as excessive and against the weight of the evidence and
`set this action down for a new trial on the issue of monetary damages, is decided as follows:
`
`Plaintiff, a 49 year old female, was injured during an endoscopy performed by defendant, Dr. Steven
`Batash on June 29, 2014. Following the procedure, plaintiff experienced abdominal pain and
`discomfort,nausea, and vomiting. She was told thather post-endoscopydiscomfort was normaland
`was sent home after the vomiting subsided. She required the assistance ofher daughter and a nurse
`to walk out of the facility. Once plaintiff arrived home she continued to experience a burning
`sensation, and vomited again. After unsuccessfully attempting to contact Dr. Batash and the
`endoscopyfacility, plaintiffs daughters brought her to the emergency room. A CT scan revealed
`a perforation of a duodenal diverticulum. Plaintiff required emergency surgery to repair the
`perforation. Plaintifftestifiedthat after being informedshe wouldrequire surgeryshe fearedfor her
`life. Her surgery incision was closed with eighteen staples. Following surgery, plaintiff was
`confinedto her hospital bed and required a urinary catheter, an NO tube, and a feeding tube for
`approximately four to five days. Shecould not move at all andrequired injections to prevent blood
`clots. Sheremainedhospitalized for nine dayspost-surgery. Upondischarge from the hospital she
`was prescribed a pain killer which she took for five days. A week later she had to return to the
`hospital due to nausea and vomiting. She was hospitalized for one night. Doctors removed her
`surgical stitches during the second hospitalization. She required assistance from her daughtersto
`
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`FILED: QUEENS COUNTY CLERK 09/28/2017 01:23 PM
`NYSCEF DOC. NO. 23
`IFILED: QUEENS COUNTY CLERK 09/28/2017 11:05 AMI
`NYSCEF DOC. NO. 22
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`INDEX NO. 700736/2015
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`perform basic tasks for the first month after her hospitalization. Ms. Garzon attended physical
`therapy sessions three timesa weekfor approximately six to sevenweeks. She was ableto return
`to work after two and one half months but had to wear a brace and could not perform all of her
`former job duties suchas lifting heavyobjects. Plaintiffhas a sevenand one-half inch surgical scar.
`When she sees the scar it reminds her of her experience. She has also avoided getting a
`recommended colonoscopy because this experience had made her fear possible complications.
`Plaintiff currently experiences occasional pain that she testified was, "very small," "comes and
`goes," and is, "nothing serious now." Plaintiffalso testified at her June 4,2015 deposition that she
`had no physical complaints related to the perforation and that she had no loss ofactivities as a result
`of her injury.
`
`Plaintiffs expert, Dr. Theodore Perlman testified that plaintiffs scar is permanent and that although
`plaintiff is not currently experiencing any pain in the area of the scar, the procedure and resulting
`intemal scar tissue may increase plaintiffs chances of experiencing future complications such as
`small bowel obstruction, hernias in the area of the incision, bacterial overgrowth, and intestiiial
`discomfort. Doctor Perlman testified thathedoes notknow ifany ofthese complications will ocdur
`in the future, but there is an increased risk. His statements were purely speculative and he could not
`specify the level of increased risk.
`
`After the trial, the jury returned a verdict in favor of the plaintiff, finding that defendant Steven
`Batash had departed from good medical practice inperforming theJune 29,2014 endoscopy and thaf
`the departure was a substantial factor in causing plaintiffs injuries. Thejury awarded plaintiff
`$1,500,000 for pastpain, suffering and loss of enjoyment of life, and $1,000,000 for future pain,
`sufferingand loss ofenjoyment of life (over 33.5 years).
`
`Defendants nowmove pursuant to CPLR 4404(a) and5501(c) to reduce or set aside theverdict as
`deviating materially from reasonable compensation for plaintiffs injuries. Defendants do not
`challenge the jury's finding of liability against defendants.
`
`Pursuant to CPLR 4404(a), uponthe inotion of anyparty,"the courtmayset asidea verdict or any
`judgment entered thereon ...orit may order a new trid of a cause of action or separable issue where
`theverdict is contrary to the weight of theevidence, in the interest ofjustice,..." "Theamount of
`damages to be awarded to a plaintiff forpersonal injuries is a question for thejury,andthe jury's
`determination will not be disturbed unless the award deviates materially from what would be
`reasonable compensation," tScaccia v. Bieniewicz. 151 A.D.3d 900.) In evaluating whether an
`awardmaterially deviates from what wouldbe reasonable compensation, the court should lookto
`the standard set forth in CPLR 5501 (c). AlthoughCPLR5501 (c) expresslyaddressesthe Appellate
`Division's authority to overturn ajury's damages verdict, its "material deviation" standard hasalso
`beenapplied to trial courts(seeOsiccki v Olympic Regional Dev. Auth.. 256 AD 2d 998; seealso
`Cochetti VGralow. 192 AD 2d 974).
`
`Indetermining whetheran awardconstitutes amaterial deviationfromreasonablecompensation, the
`Court is required to compare the jury's verdict to those verdicts resulting from factually similar
`situations (see Donlon v Citv ofNew York. 284 AD 2d 13).
`
`2 of 4
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`FILED: QUEENS COUNTY CLERK 09/28/2017 01:23 PM
`NYSCEF DOC. NO. 23
`IFILED: QUEENS COUNTY CLERK 09/28/2017 11:05 AMI
`NYSCEF DOC. NO. 22
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`INDEX NO. 700736/2015
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`Defendant cites several cases with comparable injuries.
`
`In Greco VO'Connor. (2009 WL 9053585,2009 WL 5667220), the 74 year old plaintiffsuffered a
`bowel perforation during a colonoscopy. Six days later she was admitted to the hospital with a
`bowel perforation that required colostomy and subsequent colostomy reversal that required a nine
`day hospital admission as well as incision site hernias necessitating two additional surgeries. The
`jury awarded plaintiffs a total of$500,000 ($300,000 forpast pain and suffering, $150,000for future
`pain and suffering and $50,000 on husband's loss of services claim),
`
`In Arasin v Mehlman. (2007 WL 7952740), the 45 year old plaintiff sustained a rectal tear during
`a colonoscopy. She experienced pain in the buttocks, nausea, vomiting and dry-heaves. She was
`forced to undergo surgery to repair the rectal tear which necessitated a five day hospital stay.
`Followingsurgery,plaintiffrequired the assistanceoffamilymembers to perform householdduties.
`She missed three weeks from work and was forced to limit her activities when she returned to work.
`The jury awarded her $475,000 for past pain and suffering. Defendant's motion to set aside or
`reduce the verdict was denied by the trial court.
`
`In DeRosav Kaali. (240 A.D.2d 534 [1997]),the plaintiff sustained a perforated bowel during tubal
`ligation surgery. Plaintiff required a second surgery to repair the perforation. The jury awarded
`plaintiff$300,000 for past pain and suffering and$680,000 for futurepain and suffering Onappeal,
`the Appellate Division 2^ Dept. reduced the award for future pain and suffering to $150,000.
`
`Plaintiff also cites past cases in support of their contention that the jury award does not deviate
`materially from a reasonable award
`
`In Pizarro v Mendelsohn and Katz. (2013 WL3214182), the plaintiffsufferedfour perforations of
`his colonand smallintestine following a colonoscopy performedbyco-defendant,Dr.Mendelsohn.
`Three ofthe perforations weresurgically repaired byco-defendant. Dr. Katz. Following therepair
`surgery, plaintiff was hospitalized for several daysand continued to experience severeabdominal
`pain. A secondsurgerywas requiredto repaira fourthperforation in plaintiffs small intestine that
`Dr. Katz had failed to discover during the first surgery. Plaintiff was unable to return to work for
`six months andexperiencedan openabdominal surgical woundthat did nothealfor oversixmonths
`and required cleaningmultiple times per day. Plaintiffalso continued to experience painthree to
`four times a week through the time of trial nearly six years later. The jury split liability 60/40
`between the two doctors, and awarded plaintiff a total of $1,500,000 in damages. The case later
`settled for $1,350,000.
`
`In Lee as Aministratrix of Lee v New York Hospital Queens. (118 A.D,3d 750 [2014]), the
`plaintiffs decedent was admitted to the defendant hospital with a diagnosis of gallstones and an
`inflamed gallbladder. He was scheduled for surgery the day after he was admittedto the hospital,
`however the surgery was repeatedly delayed. Plaintiffs decedent was kept in the hospital forfour
`days without being provided food or drink bymouth inpreparation forthesurgery. Four days after
`being admitted to thehospital, hedeveloped systemic sepsis andwhile beingintubated, suffered full
`cardiac arrest and died 48 minutes later. During his hospital stay the decedent complained of
`increasingly sharp pain, discomfort, hunger, difficulty breathing, and a sense of impending death.
`Thejuryawarded $5,000,000 forplaintiffs decedent's conscious painandsuffering. Uponposttrial
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`FILED: QUEENS COUNTY CLERK 09/28/2017 01:23 PM
`NYSCEF DOC. NO. 23
`IS'ILED: QUEENS COUNTY CLERK 09/28/2017 11:05 ^
`NYSCEF DOC. NO. 22
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`INDEX NO. 700736/2015
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`RECEIVED NYSCEF: 09/28/2017
`^00736/2015
`RECEIVED NYSCEF: 09/28/2017
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`motion, thetrialjudgegranted a newtrialunless plaintiffagreed to a reduction ofthatportion ofthe
`jury'sverdict to $3,750,000. TheAppellate Division Second Department affirmed thetrial court on
`that issue, finding that ^e award of$3,750,000 for decedent's conscious pain and suffering did not
`deviate materially from what would be reasonable compensation.
`
`V
`
`In Pavlovich v WvcoffHeightsMedical CenterandBlank. M.D. (2002WL6759690), theplaintiff
`suffered a perforation of the sigmoid colonduring a procedure performed bydefendant Blank. The
`perforation necessitated further surgeries to correct the perforation, a colostomy and colostomy
`reversal. During the colostomy reversal, plaintiffsuffered nerve injury in her right leg which
`required physical therapy. Following the surgeries, plaintiff suffered deep depression, anxiety,
`psychotic behavior, lowselfesteem and hallucinations andlossof independence; allsymptoms she
`had not previously experienced. Her psychiatric symptoms necessitated individual and group
`psychotherapy andmedication. Thetherapy sessions were initially threetimesper week. Shewas
`still receiving twice weekly psychotherapy and taking antidepressants and anti anxiety medication
`at the time of trial, overfive years later. Thejury awarded plaintiff $3,250,000 for herpain and
`suffering.
`
`After reviewing thetrialtestimony andthecases cited bytheparties it isthe Court's opinion thatthe
`amounts awarded by the juiy for past pain and suffering and for future pain and suffering both
`materially deviate from reasonable compensation for plaintiffs injuries inthisaction. Upon review
`ofthecases cited, theCourtfinds thattheinjuries suffered bythe plaintiffin thisaciton more closely
`resemble those suffered by theplaintiffs inthe cases cited bydefendant than those suffered bythe
`plaintiffs inthecases cited byplaintiff. Theinjuries suffered bytheplaintiffs in thecases cited by
`plaintiff, including colostomies, years ofphysical pain, a wound that remained open forsixmonths,
`a lifetime of psychiatric therapy, and three days of starvation in anticipation of a surgery that
`ultimately didnotoccurdueto plaintiffs death, were allfarriiore serious thanplaintiffs injuries in
`this action.
`
`Inview oftheforegoing, defendant's motion tosetaside thedamages verdict forpastand future pain
`and suffering in this action is granted and a new trial ordered solely on the issues of damages for
`plaintiffs past and future pain and suffering, unless within 20days ofservice ofa copy ofthis order
`with notice ofentry bydefendant upon plaintiff, plaintiffserves andfiles with theClerk ofthe Court,
`a written stipulation consenting toa reduction ofthedamages awards from $1,500,000 for past pain
`and suffering to $550,000 and from $1,000,000 for future painand suffering to $100,000.
`
`The foregoing constitutes the decision and order ofthe court.
`
`Dated: September 25,2017
`
`^
`HON. JO>SE
`
`i B
`^
`
`4 of 4
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`FILED: QUEENS COUNTY CLERK 09/28/2017 01:23 PM
`NYSCEF DOC. NO. 23
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`INDEX NO. 700736/2015
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`AFFIDAVIT OF SERVICE
`
`STATE OF NEW YORK
`
`COUNTY OF NASSAU
`
`)
`
`)
`
`)ss:
`
`I, Diane Buondelmonte, being duly sworn, says:
`18 years of age and reside in Nassau County, New York.
`
`I am not a party to the action, am over
`
`On September 28, 2017,1 served the within ORDER WITH NOTICE OF ENTRY
`upon the following:
`
`GAIR, GAIR, CONASON, STEIGMAN,
`MACKAUF, BLOOM & RUBINOWITZ
`Attorneys for Plaintiff
`80 Pine Street
`New York, New York 10005
`
`by depositing a true copy thereof enclosed in a post-paid wrapper, in an official depository under
`the exclusive care and custody of the U.S. Postal Service within New York State, addressed to
`each ofthe above-named persons at the last kno^n address set forth after each name.
`
`Diane Buondelmonte
`
`Sworn to before me this
`28th day of September, 2017
`
`uu'Ui
`Notary Public
`
`U'Yl/i
`iJ)c^
`
`DANIELLE M.MORANDI
`Notary Public, State of New York
`No. O2MO5048596
`Qudified inNassauCounty^/
`Commisaion Expires Auflust 2#,«»
`^03-1
`
`6 of 8
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`FILED: QUEENS COUNTY CLERK 09/28/2017 01:23 PM
`NYSCEF DOC. NO. 23
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`INDEX NO. 700736/2015
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`RECEIVED NYSCEF: 09/28/2017
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`7 of 8
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`(cid:127)
`(cid:127)
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`FILED: QUEENS COUNTY CLERK 09/28/2017 01:23 PM
`NYSCEF DOC. NO. 23
`
`INDEX NO. 700736/2015
`
`RECEIVED NYSCEF: 09/28/2017
`
`Index No.: 700736/15
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF QUEENS
`
`ELZA GARZON,
`
`Plaintiff,
`
`-against-
`
`STEVEN BATASH, STEVEN BATASH, M.D., P.O.,
`QUEENS ENDOSCOPY ASC, LLC, CONTINENTAL MEDICAL
`GROUP, P.C.
`
`Defendants.
`
`ORDER WITH NOTICE OF ENTRY
`
`KELLER, O'REILLY & WATSON, P.C.
`Attorneys for Defendants
`STEVEN BATASH and
`STEVEN BATASH, M.D., P.C.
`242 Crossways Park West
`Woodbury, New York 11797
`(516) 496-1919
`
`To:
`
`Attorney (s) for
`
`Service of a copy of the within
`
`is~l^ereb}r~adin^tt^.
`
`Dated:
`
`PLEASE TAKE NOTICE
`
`Attorney(s) for
`
`NOTICE OF
`ENTRY
`
`(cid:143)(cid:143)
`
`that
`
`the within is a
`
`(certified)
`
`true copy of a
`
`entered in the office of the clerk of the within named Court on
`
`19
`
`Chat an Order of which the within is a true copy will be presented for settlement
`
`to the
`
`Hon.
`
`NOTICE OF
`SETTLEMENT
`
`at
`on
`
`Dated:
`
`To:
`
`one of the judges of the within named Court,
`
`19
`
`, at
`
`M.
`
`KELLER O'REILLY & WATSON, P.C.
`Attorneys for
`
`8 of 8
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