`FILED: RICHMOND COUNTY CLERK 11.132017 03:06 PM
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`NYSCEF DOC. NO. 44
`NYSCEF DOC. NO. 44
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`INDEX NO. 150106/2012
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`RaCaIVaD vYSCEF: 11/16/2017
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF RICHMOND
`...............................................................X
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`MALVINA VITENKO, as admin. of the Estate
`of BOHDAN VITENKO, and MALVINA
`VITENKO, indiv.,
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`Plaintiff,
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`-against-
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`THE CITY OF NEW YORK, NEW YORK CITY
`DEPARTMENT OF PARKS AND RECREATION
`AND JON DOE LIFEGUARDS A-F
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`_______________________________________________________________X
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`Defendants.
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`The following papers were marked fully submitted:
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`DCM 6
`Philip G. Minardo, J.S.C.
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`Index No.: 150106/2012
`POST—TRIAL DECISION
`AND ORDER
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`Papers
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`Numbered
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`Notice of Motion of Defendant with supporting Papers and Exhibits
`(dated August 31, 2017) ..........................................................................
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`Affirmation in Opposition of Plaintiff
`(dated September 21, 2017) ........................................................................
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`2
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`Reply Affirmation of Defendant
`(dated September 27, 2017) .......................................................................... 3
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`________._______d________—_—————————————-
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`Defendant City of New York moves for an order (1) staying the entry of judgment until
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`sixty (60) days after the decision on all post-trial motions; (2) dismissing the complaint alleging
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`that plaintiff failed to prove a prima facie case of negligence; (3) setting aside the jury verdict as
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`contrary to the weight of the evidence; (4) reapportioning liability to accord with the evidence
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`presented at trial, or order a new trial on the apportionment of liability; or (5) granting a new trial
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`NYSCEF DOC. NO.
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`on the issue of damages.
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`In the matter herein, plaintiff brought this personal injury suit on behalf of her deceased
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`son, Bohdan Vitenko, for pain and suffering and wrongful death plus derivative claims. On July
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`13, 2011, at approximately 8:30 am, Bohdan, along with three friends, arrived at the New York
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`City Parks department Lyons Pool for the lap swimming session. At some point toward the end
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`of his swim workout, Bohdan and his friend, Jonathan Proce held their breath underwater for a
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`period oftime and apparently experienced a condition called “shallow water blackout.” When this
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`condition occurs, otherwise healthy and fit swimmers will pass out while holding their breath
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`underwater, then start breathing and drown Without any sign of distress.
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`None of the witnesses at the scene testified that Bohdan or Jonathan showed signs of
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`distress. Bohdan died at the scene. Jonathan was transported to Richmond University Medical
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`Center and was later pronounced dead.
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`Plaintiff alleged that Bohdan’s death was wrongful as a result ofthe defendant City ofNew
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`York’s negligence in that the defendant failed to provide training to their lifeguards with regard to
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`shallow water blackout, failed to assign the adequate number of lifeguards to the lap swimming
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`session, and the lifeguards on the date of the accident were negligent in their duties. After the
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`liability trial, the jury rendered a verdict in favor of plaintiff.
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`On the issue of damages, plaintiff and her husband testified when not at school, Bohdan
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`was primarily a full-time student at John Jay College and his intent was to enter law enforcement.
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`Plaintifftestified that her husband, Oleg Vitenko, owned a wood-working business where Bohdan
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`would work. Bohdan did not file tax returns as a result of his employment in the family business,
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`nor did he otherwise contribute to the household expenses. Plaintifftestified that she did not expect
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`that Bohdan would support his parents financially.
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`Oleg Vitenko testified that Bohdan Vitenko was his stepson and was listed as a dependent
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`on the family’s tax returns. He testified that Bohdan did help out with the business, and that there
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`was a financial loss due to Bohdan’s departure. He explained that after Bohdan’s passing, the
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`business loss was so great that Mrs. Vitenko sought employment outside the home. The family’s
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`tax returns were admitted into evidence in support.
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`After the damages trial, the jury awarded plaintiff:
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`$440,000 for past monetary loss up to and including the date of the verdict;
`$1,050,000 for future pecuniary loss over a fifteen-year time span; and
`$40,000 for funeral and burial expenses.
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`Defendant challenges the liability and damages verdict as noted supra. This court reserved
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`decision at the close of the damages trial.
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`CPLR Rule 4404(a) requires that:
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`After a trial of a cause of action or issue triable of right by a jury, upon the motion
`of any party or on its own initiative, 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 or separable issue where the verdict is contrary to the weight ofthe evidence,
`in the interest ofjustice or where the jury cannot agree after being kept together for
`as long as is deemed reasonable by the court.
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`The interests ofjustice require that a new trial only be ordered if substantial justice has not
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`been done. Schafrann v. N.V. Famka, Inc, 14 A.D.3d 363, 787 N.Y.S.2d 315 (1 Dept. 2005);
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`Gomez v. Park Donuts, Inc., 249 A.D.2d 266, 671 N.Y.S.2d 103 (2 Dept. 1998); Pitts v. Columbus
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`McKinnon Corp., 75 A.D.2d 1002, 429 N.Y.S.2d 124 (4 Dept. 1980); Delagi v. Delagi, 34 A.D.2d
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`1005, 313 N.Y.S.2d 265 (2 Dept. 1970). To set aside a verdict, this court must conclude that there
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`is “simply no valid line of reasoning and permissible inferences which could possibly lead rational
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`[people] to the conclusion reached by the jury on the basis of the evidence at trial.” Cohen v.
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`Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145 (1978); see also Roman
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`v. 1. Gold Corp., 35 A.D.3d 833, 834, 826 N.Y.S.2d 902 (2 Dept. 2006); Robinson v. City ofNew
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`York, 300 A.D.2d 384, 751 N.Y.S.2d 533 (2 Dept. 2002); Firmes v. Chase Manhattan Automotive
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`Finance Corp, 50 A.D.3d 18, 852 N.Y.S.2d 148 (2 Dept. 2008).
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`This Court is quite resistant to disrupting the verdict of any jury. The function of the jury
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`as fact-finder is sacrosanct and should be disturbed only in rare instances. However, this is one of
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`those instances. The issue of liability was determined and based upon proper evidence. The
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`liability motions were decided by this Court at the close the liability trial and will not be disturbed.
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`On the other hand, the damages award was not as clear.
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`The branch of defendant’s motion pursuant to CPLR 4404(a) which was to set aside the
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`jury verdict as to damages for past monetary and future pecuniary loss must be granted as “such
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`damages, to the extent indicated, deviate materially from what would be reasonable compensation
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`under the circumstances of this case.” Beck v. Northside Medical, 46 A.D.3d 499, 846 N.Y.S.2d
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`662, 2007 NY. Slip Op. 09547 (2d dept. 2007); see CPLR 5501 [c]; Biejanov v. Guttman, 34
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`A.D.3d 710, 826 N.Y.S.2d 111(2d dept. 2007); cf. Araujo v. Marion Mixers, 289 A.D.2d 428, 735
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`N.Y.S.2d 402 (2d Dept. 2001); Charles v. Day, 289 A.D.2d 190, 733 N.Y.S.2d 690 (2d Dept.
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`2001) (finding a new trial warranted where the infant plaintiff who suffered from Erb’s palsy was
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`able to participate in his gym classes, and perform normal tasks, therefore indicating that the award
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`for past and future pain and suffering was excessive in light of the evidence).
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`Plaintiff presented scant evidence of the decedent’s contribution to the household and the
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`possibility of any future contribution. This court finds that the jury's determination that the
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`plaintiff would have contributed to the household for fifteen (15) years is against the weight of the
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`evidence. The evidence relating to the plaintiffs current employment, education, employment
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`prospects and plans, and other evidence, was simply insufficient, to justify the jury's verdict with
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`respect to the monetary loss. Plaintiff was a young college student who aspired to enter law
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`enforcement. He was not contributing to the household in a manner which would support the
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`decision of this jury.
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`This Court therefore modifies the judgment affirmatively exercising its discretion as
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`detailed infra. See Khulaqi v. Sea-Land Services, Inc. , 185 A.D.2d 973587 N.Y.S.2d 412 (2d Dept.
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`1992); see, CPLR 4404[a]; Cohen v. Hallmark Cards, 45 N.Y.2d 493, 498—499, 410 N.Y.S.2d
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`282, 382 N.E.2d 1145; Nicastro v. Park, 113 A.D.2d 129, 132—133, 495 N.Y.S.2d 184.
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`This decision is not intended to state that the decedent’s life did not have value. As a young
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`man with so many possibilities and important goals ahead of him, his life was invaluable to his
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`family and those whose lives he had impacted and would impact in the future. Unfortunately, the
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`letter of the law cannot measure that type of loss appropriately.
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`Accordingly, it is hereby
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`ORDERED, that the motion of plaintiff to set aside the jury verdict is granted to the
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`extent that the damages are reduced as follows:
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`Past monetary loss is reduced to $308,000;
`Future pecuniary loss is reduced to $210,000 for a duration of three years;
`Funeral expenses remain $40,000;
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`NYSCEF DOC. NO. 44
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`NYSCEF DOC. NO. 44
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`And it is further
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`ORDERED, that any remaining requests are denied as the defendant’s contentions do not
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`otherwise warrant a new trial.
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`E N T E
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`Mygméer 4, 10/7
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`Hon. Philip G. Minardo, J.S.C
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