FILED: QUEENS COUNTY CLERK 10/25/2017 02:32 PM
`FILED: O_UENS COUNTY CLERK 10E2017 02:32 PM
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`NYSCEF DOC. NO
`24
`NYSCEF DOC. NO. 24
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`INDEX NO. 700736/2015
`INDEX NO- 700736/2 15
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`RaCfiIVaD vYSCEF: 10/25/2 17
`RECEIVED NYSCEF: 10/25/2017
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`SUPREME COURT OF THE STATE OF NEW YORK
`
`COUNTY OF QUEENS
`__________________________________________________________________X
`
`ELZA GARZON,
`
`Index #: 700736/2015
`
`Plaintiff,
`
`NOTICE
`
`9.17M
`
`-against-
`
`STEVEN BATASH , STEVEN BATASH, M.D.,
`
`P.C.,
`
`__________________________________________________________________X
`
`Defendants.
`
`PLEASE TAKE NOTICE that the above named plaintiffs hereby appeal to the
`
`Appellate Division of the Supreme Court of the State of New York, Second Judicial Department,
`
`from an Order of the Supreme Court, Queens County (Hon. Joseph J. Esposito), dated September
`
`25, 2017, and entered September 28, 2017, which granted Defendant’s motion to set aside the
`
`damages verdict for past and future pain and suffering.
`
`Dated: New York, New York
`
`October 25, 2017
`
`Yours, etc.,
`
`GAIR, GAIR, CONASON, RUBINOWITZ, BLOOM,
`
`HERSHENHORN, STEIGMAN & MACKAUF
`
`Attorneys for Plaintiff
`80 Pine Street
`
`New York, New York 10005
`
`(212) 9434090
`
`
`
`HARY, ESQ.
`
`D. ALLEN z
`
`TO:
`
`Keller, O'Reilly & Watson, PC.
`Attorneys for Defendants
`STEVEN BATASH, STEVEN BATASH, MD . P.C.,
`
`242 Crossways Park West
`Woodbury, New York 11797
`
`(516) 496-1919
`
`lof l5
`1 of 15
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`FILED: QUEENS COUNTY CLERK 10/25/2017 02:32 PM
`FILED: OUEENS COUNTY CLERK 10E2017 02:32 PM
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`NYSCEF DOC. NO. 24
`NYSCEF DOC. NO. 24
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`INDEX NO. 700736/2015
`INDEX NO~ 700736/2015
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`RnCnIVnD VYSCEF: 10/25/2017
`RECEIVED NYSCEF: 10/25/2017
`3191*nt (71111111 of 1112035315112 of 312m Emit
`fippellaie fitfiifitnfi: (Socorro Euhftfal ~:jBra}:tz3t1*tti:tiartt
`Form A - Request for Appellate Division intervention - Civil
`See § 670.3 of the rules of this court for directions on the use of this form (22 NYCRR 670.3).
`
`
`
`
`'ase Title:Set forth thetitle "orthe]caseas_it appears on thesummons notice ofpetition
`Q. ___rder-to- Show causebywhich the matterwas or is__tobecommenced.__or_ asamended
`
`ELZA GARZON,
`
`Date Notice of Appeal Filed
`
`-against—
`
`STEVEN BATASH and STEVEN BATASH, MD, PC,
`
`Defendant.
`
`[:l CPLR article 78 Proceeding
`|:I Special Proceeding Other
`I: Haheas Corpus Proceedin
`
`.
`
`"
`
`Appeal
`“IL—__I Oriinal“Proceed
`
`.-
`
`.
`
`l:| Transferred Proceeding
`I: CPLR 5704 Review
`
`Human Rights
`Licenses
`Public Employment
`Social Services
`Other
`
`|:| 1 Partnership/Joint Venture
`1:} 2 Business
`CI 3 Retigious
`El 4 Not-lor—Protit
`{:1 5 Other
`
`|:I 1 Assault. Battery, False
`Imprisonment
`CI 2 Conversion
`El 3 Datamation
`Cl 4 Fraud
`I: 5 Intentional lnfliction of
`Emotional Distress
`Interference with Contract
`Cl 6
`El 7 Malicious Prosecution!
`Abuse of Process
`8 Malpractice
`El 9 Negligence
`[:1 10 Nuisance
`Cl 11 Products Liability
`El 12 Strict Liabitity
`[j 13 Trespass and/orWaste
`El 14 Other
`
`G. Real Property
`Ci 1 Condemnation
`Cl 2 Determine Titae
`D 3 Easements
`El 4 Environmental
`[:1 5 Liens
`D 6 Mortgages
`I: 7 Partition
`D 8 Rent
`D 9 Taxation
`l: 10 Zoning
`B 11 Other
`
`
`
`1:] 1 Discipline
`1:] 2 Jail Time Calcutation
`Attorney's Fees
`1:1 3 Parole
`Children- Support
`Children- Custody/Visitation B 4 Other
`Children . Terminate Parental
`Rights
`Children - Abuse/Neglect
`Children -JD/P1NS
`Equitable Distribution
`Exclusive Occupancy of
`Residence
`[:1 10 Expert‘s Fees
`D 11 Maintenance/Alimony
`D 12 Marital Status
`_D ts Paternity
`E} 1 Brokerage
`El 14 Spousal Support
`I: 2 Commercial Paper
`[:1 15 Other
`D 3 Construction
`D 4 Employment
`[:1 5
`insurance
`El 6 Real Property
`[:1 7 Sales
`El 8 Secured
`I: e Other
`
`E. Miscellaneous
`El 1 Constructive Trust
`El 2 Debtor&Creditor
`I: 3 Declaratory Judgment
`D 4 Etection Law
`[:3 5 Notice of Claim
`El 6 Other
`
`J. lM'Ils & Estates
`H. Statutory
`I: 1 Accounting
`El 1 City of Mount Vernon
`[:1 2 Discovery
`Charter§§120.127-f.or
`I] 3 Probate/Administration
`129
`[:1 2 Eminent Domain Procedure El 4 Trusts
`Law§207
`[:1 5 Other
`El 3 Genera! Municipal Law
`§ 712
`a 4 Labor Law § 220
`E 5 Public Service Law § § 128
`or 170
`
`Form A ' RAD' ‘ CW"
`
`PRINTINGHOUSE PRESS
`
`El 6 Other
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`212—719-0990
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`20f 15
`2 of 15
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`v2.0.060293
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`FILED: QUEENS COUNTY CLERK 10/25/2017 02:32 PM
`FILED: OUEENS COUNTY CLERK 10E2017 02:32 PM
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`NYSCEF DOC. NO. 24
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`NYSCEF DOC' NO' 24
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`INDEX NO. 700736/2015
`INDEX N0. 700736/2015
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`RECEIVED NYSCEF: 10/25/2017
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`
`
`Paper Appeaied From (check one only):
`I: Amended Decree
`{:1 Determination
`l3 Amended Judgment
`a Finding
`1: Amended Order
`a lnterlocutory Decree
`Cl Decision
`CI interlocutory Judgment
`Cl Decree
`CI Judgment
`
`Court SUPREME
`Dated: September 25 2017
`Judge (nameIn fulE) JosephJ. Esposito
`Stage' [El
`Interlocutory
`L—J Finai
`[:1 Post-Final
`
`Order
`I: Order&Judgment
`L—J Partial Decree
`El Resettled Decree
`[:1 Resettled Judgment
`
`I3 Resettled Order
`I: Ftuting
`D Other (specify):
`
`iCounty: QUEENS
`i Entered: September 28, 2017
`gindex No: 70073672015
`iTriai: El Yes El No
`lers: El
`
`Jury El Non-Jury
`
`Prior Unperfected Appeai Information
`
`Are any unperfecteci appeals pending in this case? [:1 Yes
`covered by the annexed notice of appeal with the prior appeals?
`Number(s) of any prior, pending, unperfected appeals:
`
`If yes, do you intend to perfect the appeal or appeals
`No.
`1:] Yes C] No. Set forth the Appellate Division Cause
`
`
`
`Judge (name in quI):
`
`
`
`
`
`
`if an appeal, briefly describe the paper appealed from. lithe appeal is from an order, specify the relief request-
`Description:
`ed and whether the motion was granted or denied.
`If an original proceeding commenced in this court or transferred pursuant
`to CPLFt 7804(g), briefly describe the object of the proceeding. If an application under CPLR 5704, briefly describe the nature
`of the ex parte order to be reviewed.
`
`Plaintiff, Elza Garzon, hereby appeals to the Appellate Division, Second Judiciai Department, from
`an Order of the Honorable Joseph J. Esposito, dated 9/25/17 and entered on 9/28/17, which
`granted defendant Defendants' motion to set aside the damages verdict for past and future pain
`and suffering.
`
`Amount:
`issues:
`
`if an appeai is from a money judgment, specify the amount awarded.
`Specify the issues proposed to be raised on the appeal, proceeding, or application for CPLR 5704 review.
`
`Whether the Court abused its discretion in reducing the damages awarded by the jury‘s verdict for
`plaintiff‘s past and future pain and suffering.
`
`PRINTINGHOUSE PRESS
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`212-719-0990
`3 of 1 5
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`INDEX NO. 700736/2015
`FILED: QUEENS COUNTY CLERK 10/25/2017 02:32 PM
`INDEX NO~ 700736/2015
`FILED: OUEENS COUNTY CLERK 10E2017 02:32 PM
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`
`017
`NYSCEF DOC. NO. 24
`RECEIVED NYSCEF: 10/25/2017
`NYSCEF DOC. NO. 24
`
`Issues Continued:
`
`Use Form B for Additional Appeal Information
`
`
`
`
`..
`.
`._
`.__
`.
`.. ..
`..
`1. fflirty-itaffirmatinn.’ "
`.
`_
`.
`__
`.
`_
`_
`__ _.
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`
`
`Fill in the name oi each party to the action or proceeding, one
`Examples 0: a party's origsnai status include: plaintiii, defendant,
`Instructions:
`
`
`name per line.
`It this form is to be filed for an appeal, indicate the status 01 the petitioner.
`respondent. Claimant. detendant
`third-party plaintiit.
`third«party
`party in the court of original instance and his, her. or its status in this court, it defendant. and intervenor. Examples of a party's Appellate Division status
`
`any.
`If this form is to be filed tor a proceeding commenced in thés court. fill in
`include:
`appetiant. respondent, appeizant-respondent. respondentvappellant.
`only the party's name and his, her. or its status in this court.
`petitioner. and interveaor.
`
`
`
`
`
`
`
`
`
`
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`.3_a..a._L_:.C05101(«ON
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`PRINTENGHOUSE PRESS
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`212-719-0990
`4 of 1 5
`4 of 15
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`FILED: QUEENS COUNTY CLERK 10/25/2017 02:32 PM
`FILED: OUEENS COUNTY CLERK 10E2017 02:32 PM
`NYSCEF DOC. NO. 24
`NYS.
`-.-...'.
`‘°‘
`
` Ormail'oit
`
`that a titigant represents herselt or himselt, the box
`in the names of the attorneys or firms of attorneys for the
`Fill
`instructions:
`in the event
`respective parties. If this term is to be filed with the notice at petition or order to
`marked "Pro Se" must be checked and the appropriate information for that litigant
`show cause by which a special proceeding is to be commenced in the Appellate
`must be supplied in the spaces provided.
`Division, only the name oi the attorney for the petitioner need be provided.
`
`
`INDEX NO. 700736/2015
`INDEX NO~ 700736/2015
`RECEIVED NYSCEF: 10/25/2017
`2017
`
`Attorney/Firm Name: Gair, Gair, Conason, Rubinowitz, Broom, Hershenhorn, Steigman & Mackauf
`
`
`
`
`
`
`
`
`
`
`
`AdGFESSI 80 Pine Street, 34th Floor
`
`City: New York
`
`State: NY
`
`Zip:
`
`10005
`
`Telephone No.: (212) 943-1090
`
`Attorney Type:
`(El Retained
`Ci Assigned
`CI Government DPro Se
`Party or Parties Represented (set forth party number[s} from tabie above or trom Form C):
`
`I:| Pro Hac Vice
`IIIIIIIIII
`
`Attorney/Firm Name: Keiler, O'Reill
`
`8: Watson. PC
`
`Address: 242 Crossways Park West
`
`City: Westbury
`
`State: NY
`
`Zip: 11797
`
`Telephone No.: (516) 4964 919
`
`Attorney Type:
`Retained
`E; Assigned
`|:J Government
`Party or Parties Represented (set forth party numbeds} from table above or from Form C):
`Attorney/Firm Name:
`
`(jPro Se El Pro Hac Vice
`I'll"...-
`
`Address:
`
`City:
`
`State:
`
`Zip:
`
`Terephone No:
`
`Attorney Type:
`
`E) Retained
`
`Ci Assigned
`
`1:) Government BPro Se
`
`E} Pro l-iac Vice
`
`Party or Parties Represented (set torth party number[s} from table above or from Form C):
`
`Attorney/Firm Name:
`
`Address:
`
`Cit
`
`:
`
`State:
`
`Ziu:
`
`Telephone No.:
`
`Attorne T us:
`[I Retained
`Part or Parties Fie- resented (set iorth par
`
`Ci Assi-ned
`CI Government
`number[s) from table above or from Form C):
`
`{Pro Se D Pro Hac Vice
`IIIIIIIIII
`
`Attorney/Firm Name:
`
`Address:
`
`City:
`
`State:
`
`Zip:
`
`Telephone No:
`
`Attorney Type:
`
`B Retained
`
`CI Assigned
`
`|:] Government
`
`Party or Parties Represented (set forth party number[s} from table above or from Form C):
`
`|:]Pro Se CI Pro Hac Vice
`
`
`Attorney/Firm Name:
`
`Address:
`
`City:
`
`State:
`
`Zip:
`
`Telephone No.:
`
`
`
`
`
`
`
`
`
`
`|:| Pro Hac Vice
`Attorney Type:
`El Retained
`{:i Assigned
`Lil Government
`'I."""-
`Party or Parties Represented (set torth party numberis} trom table above or from Form C):
`
`' Use Form C for Additionai Party and/or Attorney Information
`
`[Pro Se
`
`The use of this form is explained in § 670.3 of the rules of the Appellate Division, Second Department (22 NYCRR 670.3). If this form
`is to be filed for an appeal. piece the required papers in the foitowing order: (1) the Request for Appellate Division intervention {Form
`A, this document]. (2) any required Additional Appeal Information Forms [Form B], (3) any required Additional Party and Attorney
`Information Forms [Form C]. (4) the notice of appeal or order granting leave to appeal, (5) a copy of the paper or papers from which
`the appeal or appeals covered in the notice of appeal or order granting teave to appeai is or are taken, and (6) a copy of the decisiOn
`or decisions of the court of original instance. if any.
`
`PRINTINGHOU SE PRESS
`
`212—719—0990
`5 of 15
`5 of 15
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`FILED: QUEENS COUNTY CLERK 10/25/2017 02:32 PM
`5 COUNTY CLERK Maire-017 02:32
`WWF DOC- N0
`23
`NYSCEF DOC. NO. 24
`
`INDEX NO.
`700736/2 15
`INDEX NO. 700736/2015
`
`REEEEYEEDNfifigéfiF:
`0962§SZQ fl7
`RECEIVED NYSCEF: 10/25/2017
`
`DMM/db
`
`006—408
`
`SUPREME COURT OF THE STATE OF NEW YORK
`
`COUNTY OF QUEENS
`
`ELZA GARZON,
`
`_______________x
`
`Plaintiff,
`
`-against—
`
`STEVEN BATASI—I, STEVEN BATASH, M.D., P.C.,
`
`Defendants.
`...............X
`
`Index No.: 700736/15
`
`Date Filed: 1/28/15
`
`ORDER WITH NOTICE
`
`OF ENTRY
`
`Assigned to Honorable
`Justice Joseph Esposito
`
`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, RC.
`CJN
`
`4t
`I /
`, /
`.
`
`
` I
`
`DANIELLE M. GRAND
`
`
`
`Attorneys for Defendants
`STEVEN BATASI—I and
`
`STEVEN BATASH, M.D., RC.
`
`242 Crossways Park West
`Woodbury, New York 1 1797
`(516) 496-191 9
`
`TO:
`
`GAIR, GAIR, CONASON, STEIGMAN,
`
`MACKAUF, BLOOM & RUBINOWITZ
`
`Attorneys for Plaintiff
`80 Pine Street
`
`New York, New York 10005
`
`(212) 943—1090
`
`60f B5
`6 of 15
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`

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`
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`FILED: QUEENS COUNTY CLERK 10/25/2017 02:32 PM
` _.._.,\._.
`_.
`7
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`4,
`,y
`-
`..
`assess nee.
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`a
`FILED: OUEENS COUNTY CLERK 09mm .
`NYSCEF DOC. NO. 24
`NYSCEF DOC. NO. 22
`'
`_
`‘
`_
`I
`‘
`_
`..
`
`
`INDEX NO. 700736/2015
`INDEX NO. 700736/2015
`Restarts at as no a
`s7
`RECEIVED NYSCEF: 10/25/2017
`
`INDEDX 130- iPfiOfié/géig l7
`RECEIVED NYSCEF: 09/28/2017
`
`Short Form Order
`
`NEW YQRK STATE SUPREME COURT - QUEENS COUNTY
`HONORABLE JOSEPH J. ESPOSITO
`.
`' Fangs
`'
`Justice
`..-----_-_--_-..---._._-__-3____________________._________________X
`ELZA GARZON,
`
`'
`
`L
`
`\
`.,
`
`700736115
`
`‘
`
`Present:
`
`'
`
`Plaintiff,
`
`- against -
`
`STEVEN BATASH and
`STEVEN BATASH, M.D., P.C.,
`
`.
`,
`
`-
`
`_
`1
`Index ~
`' Number:
`
`'
`.
`.
`. Minion Date: 5/4/17
`
`'
`
`Motion
`Cal. Number: 37
`
`Defendants.
`.---u-“un-——-----_-—-----uuouusuuw—n-u—umunuu-uuunm-uuauu-uu-uuu x
`
`Motion Seq:
`
`1
`
`The following papers numbered 1 to 3 were read on this post-trial motion by defendant to set aside
`the jury verdict in this action as excessive.
`
`Notice ofMotion-Affirmation-Exhibits.................................................... 1
`Opposition-Affinnation-Exhibits.............................................................. 2
`Reply(s)..................................................................................................... 3
`
`35/? 23 30
`’7
`00w
`QUEENgtzgiR?KTY
`
`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, plaintifi' experienced abdominal pain and
`discomfort, nausea, and vomiting. She was told that her post-endoscopy discomfort was normal and
`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
`endoscopy facility, plaintiff’s 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. Plaintiff testified that after being informed she would require surgery She feared for her
`life. Her surgery incision was closed with eighteen staples. Following surgery, plaintiff was
`confined to her hospital bed and required a urinary catheter, an NG tube, and a feeding tube' for
`approximately four to five days. She could not move at all and required injections to prevent blood
`clots. She remained hospitalized for nine days post-surgery. Upon discharge 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 daughters to
`
`12 Ode 435
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`FILED: QUEENS COUNTY CLERK 10/25/2017 02:32 PM
`NYSCEF DOC. NO. 24
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`LED: oUEsNS COUNTY CLERK 09mm
`NYSCEF DOC. NO. 22
`
`EX NO.
`700736/2015
`INDEX NO. 700736/2015
`
`R§E§§hi§B<Nii§Eghoigéigdi§H7
`RECEIVED NYSCEF: 10/25/2017
`RECEIVED NYSCEF: 09/28/2017
`
`perform basic tasks for the first month after her hospitalization. Ms. Garzon attended physical
`therapy sessions three times a week for approximately six to seven weeks. She was able to return
`to work alter two and one half months but had to wear a brace and could not perform all of her
`formerjob duties such as lifting heavy objects. Plaintifi‘has a seven and one—halfinch 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.” Plaintiff also 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.
`'
`
`Plaintiff’s expert, Dr. Theodore Perlman testified that plaintiff s scar is permanent and that although
`plaintiff is not currently experiencing any pain in the area of the scar, the procedure and resulting
`internal scar tissue may increase plaintiff’s chances of experiencing future complications such as
`small bowel obstruction, hernias in the area of the incision, bacterial overgrowth, and intestinal
`discomfort. Doctor Perltnan testified that he does not know if any of these 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 in performing the June 29, 2014 endoscopy and that“
`the departure was a substantial factor in causing plaintiff’s injuries. The jury awarded plaintiff
`$1,500,000 for past pain, suffering and loss of enjoyment of life, and $1,000,030 for future pain,
`suffering and loss ofenjoyment of life (over 33.5 years).
`
`Defendants now move pursuant'to CPLR 4404(a) and 5501(c) to reduce or set aside the verdict as
`deviating materially from reasonable compensation for plaintiff’s injuries. Defendants do not
`challenge the jury’s finding of liability against defendants.
`
`Pursuant to CPLR 4404(3), upon the motion of any party,”the court may set aside a verdict or any
`judgment entered thereon ...or it may order a new trial of a cause of action or separable issue where
`the verdict is contrary to the weight of the evidence, in the interest ofjustice....” “The amount of
`damages to be awarded to a plaintiff for personal injuries is a question for the jury, and the jury‘s
`determination will not be disturbed unless the award deviates materially from what would be
`reasonable compensation," (Seaccia v. Bieniewicz, 151 A.D.3d 900.)
`In evaluating whether an
`award materially deviates from what would be reasonable compensation, the court should look to
`the standard set forth in CPLR 5501(0). Although CPLR 5501 (c) expressly addresses the Appellate
`Division’s authority to overturn ajury’s damages verdict, its “material deviation” standard has also
`been applied to trial courts (se_e Osiecki v Olympic Regional Dev. Auth, 256 AD 2d 998; §2 asp
`Cochetti v Graiow, 192 AD 2d 974).
`.
`
`In determining whether an award constitutes a material deviation from reasonable compensation, the
`‘ Court is required to compare the jury’s verdict to those verdicts resulting from factually similar
`situations Lse_e Donlon v Gig; of New York, 284 AD 2d 13).
`
`28%4135
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`INDEX NO. 700736/2015
`FILED: QUEENS COUNTY CLERK 10/25/2017 02:32 PM
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`INDEX NO. 700736/2015
`"5r:
`1‘
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`'- 0
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`assess see. no.
`a
`RECEIVED NYSCEF: 10/25/2017
`NYSCEF DOC. NO. 24
`FILED: oceans COUNTY CLERK 09mm iiifi‘
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`“fig/(2835?;
`
`NYSCEF DOC. N0. 22
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`RECEIVED NYSCEF: 09/23/2017
`
`Defendant cites several cases with comparable injuries.
`
`
`In Green v O’Connor (2009 WL 9053585, 2009 WL 5667220), the 74 year old plaintiff suffered 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 for past pain and suffering, $150,000 for 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.
`Following surgery, plaintiffrequired the assistanceoffamily members to perform household duties.
`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 DeRosa v 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 future pain and suffering On appeal,
`the Appetlate Division 2"‘1 Dept. reduced the award for filture pain and suffering to $150,000.
`
`Plaintiff also cites past cases in support of their contention that the fury aWard does not deviate
`materially from a reasonable award
`
`J
`
`
`In Pizarro v Mendelsohn and Katz (2013 WL 3214182), the plaintiff suffered four perforations of
`his colon and small intestine following a colonoscopy performed by co-defendant, Dr. Mendelsohn.
`Three of the perforations were surgically repaired by co-defendant, Dr. Katz. Following the repair
`surgery, plaintiff was hospitalized for several days and continued to experience severe abdominal
`pain. A second surgery was required to repair a fourth perforation in plaintiffs small intestine that
`Dr. Katz had failed to discover during the first surgery. Plaintifi was unable to return to work for
`six months and experienced an open abdominal surgical wound that did not heal for over six months
`and required cleaning multiple times per day. Plaintiff also continued to experience pain three to
`four times a week through the time of trial nearly six years later. The jury split liability 601'40
`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
`plaintiff’s 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 admitted to the hospital,
`however the surgery was repeatedly delayed. Plaintiff’s decedent was kept in the hospital for four
`days without being provided food or drink by mouth in preparation for the surgery. Four days after
`being admitted to the hospital, he developed systemic sepsis and while being intubated, 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.
`Thejury awarded $5,000,000 for plaintiff’s decedent’s conscious pain and suffering. Upon post trial
`
`hairdo
`9 of 15
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`INDEX NO. 700736/2015
`FILED: QUEENS COUNTY CLERK 10/25/2017 02:32 PM
`FILED: UEENS COUNTY CLERK em—m_g -
`ax no. 700736/2015
`
`
`
`
`NrSCEF as: N:
`23magmas Rffigiiifiii‘wgiibgiiiiiiidfi
`RECEIVED NYSCEF: 10/25/2017
`NYSCEF DOC. NO. 24
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`
`
`
`
`NYSCEF DOC. N0. 22
`
`RECEIVED NYSCEF: 09/28/2017
`
`\
`
`it.
`
`motion, the trial judge granted a new trial unless plaintiff agreed to a reduction ofthat portion of the
`jury‘s verdict to $3,750,000. The Appellate Division Second Department affirmed the trial court on
`that issue, finding that the award of $3,750,000 for decedent’s conscious pain and suffering did not
`deviate materially from what would be reasonable compensation.
`-
`
`In Pavlovich v Wycoff Heights Medical Center and Blank, MD. (2002 WL 6759690), the plaintiff
`suffered a perforation of the sigmoid colon during a procedure performed by defendant Blank. The
`perforation necessitated further surgeries to correct the perforation, a colostomy and colostomy
`reversal. During the colostomy reversal, plaintiff suffered nerve injury in her right leg which
`required physical therapy. Following the surgeries, plaintiff suffered deep depression, anxiety,
`psychotic behavior, low selfesteem and hallucinations and loss of independence; all symptoms she
`had not previously experienced. Her psychiatric symptoms necessitated individual and group
`psychotherapy and medication. The therapy sessions were initially three times per week. She was
`still receiving twice weekly psychotherapy and taking antidepressants and anti anxiety medication
`at the time of trial, over five years later. The jury awarded plaintiff $3,250,000 for her pain and
`suffering.
`
`After reviewing the trial testimony and the cases cited by the parties it is the Court’s opinion that the
`amounts awarded by the jury for past pain and suffering and for future pain and suffering both
`materially deviate from reasonable compensation for plaintiff’s injuries in this action. Upon review
`ofthe cases cited, the Court finds that the injuries suffered by the plaintiffin this aciton more closely
`resemble those sufi’ered by the plaintiffs in the cases cited by defendant than those suffered by the
`plaintiffs in the cases cited by plaintiff. The injuries suffered by the plaintiffs in'the cases cited by
`plaintiff, including colostomies, years ofphysical pain, a wound that remained Open for six months,
`a lifetime of psychiatric therapy, and three days of starvation in anticipation of a surgery that
`ultimately did not occur due to plaintiff 3 death, were all far more serious than plaintiff’s injuries in
`this action.
`'
`
`In view ofthe foregoing, defendant’s motion to set aside the damages verdict forpast and future pain
`and suffering in this action is granted and a new trial ordered solely on the issues of damages for
`plaintiff's past and future pain and suffering, unless within 20 days ofservice of a copy of this order
`with notice ofentry by defendant upon plaintiff; plaintiff serves and tiles with the Clerk of the Court,
`a written stipulation consenting to a reduction ofthe damages awards from $1,500,000 for past pain
`and suffering to $550,000 and from $1,000,000 for future pain and suffering to $100,000.
`
`The foregoing constitutes the decision and order of the court.
`
`l
`
`Dated: September 25, 2017
`
`fil‘dfifqaj
`10 of 15
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`

`

`FILED: QUEENS COUNTY CLERK 10/25/2017 02:32 PM
`FILED: 0UE_NS COUNTY CLERK memzon 02:32 Pu
`NYSCEF DOC. No
`23
`NYSCEF DOC. NO. 24
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`
`INDEX NO. 700736/2015
`INDEX NO- 7'0'07'3'6/277175
`WWW: 013122311
`177
`RECEIVED NYSCEF: 10/25/2017
`
`AFFIDAVIT OF SERVICE
`
`STATE OF NEW YORK
`
`COUNTY OF NASSAU
`
`)
`
`)
`
`)ss:
`
`1, Diane Buondelmonte. being duly sworn, says:
`18 years of age and reside in Nassau County. New York.
`
`1 am not a party to the action, am over
`
`On September 28. 2017. I 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 ofthe US. Postal Service within New York State, addressed to
`each of the above-named persons at the last knoyvn address set forth after each name.
`
`
`
` f1 24"
`Diane Buondelmontefl
`
`Sworn to before me this
`
`28111 day of September, 2017
`
`
`
`1’1/2’] ‘1"; VI)” .hC’il-‘lrd-MZK'
`‘ I; } 1
`(i.
`OJW l ,/ /
`Notary Public
`
`
`
`
`
`DANIELLE M. MORANDI
`Notary Public. Statepf New York
`No. Dab-105048598
`Qualified In Nassau County
`Commission Expire- August 23'?!‘
`921;»;
`
`16Lo‘DflE815
`11 of 15
`
`

`

`FILED: QUEENS COUNTY CLERK 10/25/2017 02:32 PM
`
`NYSCEF DOC. NO. 24
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`RECEIVED NYSCEF: 10/25/2017
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`12 of 15
`
`

`

`FILED: QUEENS COUNTY CLERK 10/25/2017 02:32 PM
`
`NYSCEF DOC. NO. 24
`
`
`INDEX NO. 700736/2015
`INDEX NO. 700736/2015
`
`REEEEMEEmNKfiEEEEaD%b%%é%@%17
`RECEIVED NYSCEF: 10/25/2017
`
`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.C.,
`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 cqpy of the within
`
`is hereby admitted.
`
`Dated:
`
`................................................
`
`PLEASE TAKE NOTICE
`
`Attorne
`
`s
`
`for
`
`the within is a (certified) true copy of a
`D that
`NOTICE OF
`entered in the office of the clerk of the within named Court on
`ENTRY
`
`19
`
`i
`I
`{ Hon.
`
`E]
`
`.
`.
`.
`.
`.
`that an Order of which the Within 15 a true copy Will be presented fbr settlement to the
`
`NOTICE OF
`SETTLEMENT
`
`at
`on
`
`one of the judges of the within named Court,
`
`19
`
`, at
`
`M.
`
`Dated:
`
`‘
`
`I
`
`To:
`
`KELLER O'REILLY & WATSON, 9.0.
`
`Attorneys for
`
`13 ©f 85
`13 of 15
`
`

`

`FILED: QUEENS COUNTY CLERK 10/25/2017 02:32 PM
` FILED: O_UENS COUNTY CLERK 10E2017 02:32 PM
`
`NYSCI3F DOC. NO
`24
`'
`NYSCEF DOC. NO. 24
`
`
`
`INDEX NO. 700736/2 15
`INDEX NO. 700736/2015
`
`
`
`
`
`RfiCfiIVfiD VYSCEF: 10/25/2 17
`RECEIVED NYSCEF: 10/25/2017
`
`
`
`AFFIDA VIT 0F SER VICE
`
`STATE OF NEW YORK
`
`COUNTY OF NEW YORK
`
`ss.:
`
`)
`
`)
`
`I am not a party to the action, am over 18 years of
`Fran MacConneIl, being sworn says:
`age and reside in Richmond County, New York.
`
`On October 25, 2017, I served a true copy of the annexed NOTICE OF APPEAL
`WITH SUPPORTING PAPERS by mailing the same in a sealed enveIOpe, with postage
`prepaid thereon, addressed to the last known address of the addressee(s) as indicated below:
`
`TO:
`
`Keller, O'Reilly & Watson, P.C.
`242 Crossways Park West
`
`Woodbury, New York 11797
`
`
`
`Frail MacConnell
`
`SW nito before me this
`
`‘h day of 0? ober, 2017
`
`
`S A ONE.NJENKM8
`Notary ubiic, State of New York
`No.01dE4543288
`Qualmed in Queens C u y
`Commission Expires
`
`7/0 Z/
`
`14 of 15
`14 of 15
`
`

`

`FILED: QUEENS COUNTY CLERK 10/25/2017 02:32 PM
`FILED: OUEENS COUNTY CLERK 10E2017 02:32 PM
`
`NYSCEF DOC. NO. 24
`NYSCEF DOC. NO. 24
`
`INDEX NO. 700736/2015
`INDEX NO~ 700736/2015
`
`
`
`
`
`RaCaIVaD VYSCEF: 10/25/2017
`RECEIVED NYSCEF: 10/25/2017
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`
`COUNTY OF QUEENS
`
`Index# 700736/2015
`
`ELZA GARZON,
`
`-against—
`
`Plaintiff,
`
`STEVEN BATASH, STEVEN BATASH, M.D., P.C.,
`
`Defendants.
`
`GAIR, GAIR, CONASON, RUBINOWITZ, BLOOM.
`
`HERSHENHORN, STEIGMAN & MACKAUF
`
`Attorneys for Plaintiff
`80 Pine Street
`
`New York, New York 10005
`
`(212) 943-1090
`
`Notice of Entry
`
`Please take notice that the within is a certified copy of a
`ofthe within named Court on
`, 2017.
`
`duly entered in the office of the Clerk
`
`Dated:
`
`, 2017
`
`Notice of Settlement
`
`the Hon.
`
`Please take notice that an
`, at the
`
`, of which the within is a true copy, will be presented for settlement to
`Court,
`County, on the
`day of
`, 2017.
`
`Dated:
`
`, 2017
`
`15 of 15
`15 of 15
`
`