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`To commence the statutory
`time for appeals as of right
`(CPLR 5513[a]), you are
`advised to serve a copy
`of this order, with notice
`of entry, upon all parties.
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF WESTCHESTER
`PRESENT: HON. SAM D. WALKER, J.S.C.
`------------------------------------------------------------------------------x
`MARTIN GLYNN,
`
`Plaintiff,
`
`-against-
`
`THOMAS J. ALTOBELLI
`
`DECISION & ORDER
`Index No: 50517/2015
`Seq#4 & 5
`
`Defendant."
`-----------------------------------------x
`Plaintiff Martin Glynn and Defendant Thomas J. Altobelli both move this Court
`
`pursuant
`
`to CPLR 4404 to set aside the liability and damages verdicts directing judgment
`
`as a matter of law or in the alternative,
`
`for new trials as to liability and damages.
`
`The following papers were read on Plaintiff Martin Glynn's and Defendant Thomas
`
`J. Altobelli's motions:
`
`PAPERS
`Notice of Motion/Affirmation in Support/Exhibits A-F
`Affirmation in Opposition/Exhibits A-H
`Memorandum of Law in Opposition
`Notice of Motion/Affirmation/Exhibits
`Memorandum of Law in Support
`Exhibit 1
`
`A-H
`
`FACTUAL AND PROCEDURAL BACKGROUND
`
`NUMBERED
`1-8
`9-16
`17
`18-27
`2829
`
`Plaintiff, Martin Glynn ("Glynn") commenced this action to recover damages arising
`
`from a motor vehicle/bicycle
`
`accident with Defendant, Thomas J. Altobelli
`
`("Altobelli")
`
`alleging that Defendant Altobelli was negligent
`
`in operating his motor vehicle causing a
`
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`collision with Plaintiff Glynn on his bicycle resulting in personal
`
`injuries. On December 4,
`
`2013, Plaintiff Glynn was travelling via bicycle on Batton Road, which runs north-south
`
`intersecting with Route 129, which is a two-way road traveling east-west. Batton Road is
`
`governed by a stop sign where it intersects with Route 129. What happened next is highly
`
`contested, but Plaintiff Glynn claims that before entering the road he came to a stop and
`
`looked left to make sure there was no oncoming traffic so he could safely enter the two
`
`way intersection. There is a dispute as to whether or not Plaintiff Glynn came to a proper
`
`stop before proceeding into the intersection, but at some point
`
`in the process of the
`
`. Plaintiff
`
`entering
`
`the
`
`intersection,
`
`Defendant Altobelli's
`
`vehicle
`
`approached
`
`the
`
`intersection while speeding. Defendant crossed the double yellow line into oncoming
`
`traffic, and Plaintiff's bicycle collided with the passenger side of the Defendant's vehicle
`
`resulting in the Plaintiff sustaining a .fracture to the thumb. The Plaintiff had to have two
`
`surgeries to repair the fracture(one
`
`to insert pins and the other to remove them), he had
`
`to wear a cast for several weeks, and he underwent physical
`
`therapy. Plaintiff
`
`filed this
`
`action to recover for past and future pain and suffering as well as lost earnings for the
`
`period he was unable to work to his fullest capacity due to the injury.
`
`Defendant Altobelli moved for summary judgment, pursuant
`
`to CPLR 3212, which
`
`was denied by the Court (Lubell, J.), finding that Plaintiff raised some material questions
`
`offact warranting the denial of the motion including, but are not limited to, whether Plaintiff
`
`came to a stop at the subject
`
`intersection before proceeding."
`
`(See Decision and Order'
`
`dated Sept. 22, 2016 [Lubell, J.]).
`
`The case proceeded to a bifurcated trial before this Court. On the issue of liability,
`
`the jury found both Plaintiff and Defendant
`
`to be negligent, but found that only Defendant's
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`negligence was a proximate cause and substantial
`
`factor
`
`in causing the accident.
`
`Regarding the issue of damages,
`
`the jury awarded Plaintiff $67,000 for loss of earnings,
`
`$24,000 for past pain and suffering and $334,000 for future pain and suffering.
`
`Defendant now files the instant motion pursuant
`
`to CPLR 4404 to set aside both
`
`the liability verdict and damages verdict directing judgment
`
`in favor of Defendant Altobelli
`
`as a matter of
`
`law or in the alternative,
`
`for a new trial as to liability and damages.
`
`Defendant argues that a finding that Plaintiff's negligence was not a proximate cause of
`
`the accident
`
`is inconsistent and contrary to the weight of the evidence;
`
`that the damages
`
`verdict should be set aside as excessive,
`
`inconsistent and contrary to the weight of the
`
`evidence;
`
`that
`
`the damages verdict should be set aside since Plaintiff's attorney used
`
`inflammatory and highly prejudicial
`
`language during opening statements; and that
`
`the
`
`award for lost earnings should be reduced by amounts awarded by no fault benefits, and
`
`reduced to $10,962.
`
`Plaintiff argues that Defendant
`
`is not entitled to judgment as a matter of law due to
`
`there being issues of
`
`fact
`
`for the jury to resolve;
`
`that
`
`the jury verdict
`
`for
`
`liability is
`
`consistent with the weight of
`
`the evidence;
`
`that
`
`the jury award for damages was
`
`appropriate and consistent;
`
`that Plaintiff's comments do not warrant a new trial; and that
`
`the award for lost earnings should not be reduced.
`
`Plaintiff also files his own motion pursuant
`
`to CPLR 4404 to set aside the award
`
`for past pain and suffering because it materially deviates from what would be reasonable
`
`compensation and argues that the Court erred in precluding the testimony of Glynn and
`
`his wife Kate with respect to mental and emotional suffering. Defendant opposes, arguing
`
`that Plaintiff's motion was made in bad faith,
`
`that Plaintiff's motion with respect
`
`to
`
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`admissibility of testimony must be raised on appeal, and the award for past pain and
`
`suffering was a reasonable compensation.
`
`DISCUSSION
`
`CPLR 4404(a) states,
`
`in relevant part, that:
`
`(a]fter 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 of the evidence,
`in the interest of justice or where
`the jury cannot agree after being kept together
`for as long as is deemed
`reasonable by the court .
`
`."A motion pursuant
`
`to CPLR 4404(a)
`
`to set aside a jury verdict and for judgment
`
`as a matter of law will be granted where there is no valid line of reasoning and permissible
`
`inferences which could possibly lead rational persons to the conclusions reached by the
`
`jury on the basis of the evidence presented at trial." (Doobay v Girardi, 104 AD3d 726,
`
`728 [2d Dept. 2013], quoting Vittiglio v Gaurino, 100 AD 3d 987, 987-988).
`
`In order to
`
`establish entitlement
`
`to relief, the proponent of a motion to set aside the jury verdict as
`
`not supported by legally sufficient evidence must demonstrate this. (Rosenfeld v Baker,
`
`78 AD3d 810,811 [2d Dept. 2010]).
`
`Indeed, the prevailing party is "entitled to the benefit
`
`of every favorable inference which can reasonably be drawn from the facts."
`
`(Taype v
`
`City of New York, 82 AD2d 648, 651 [2d Dept. 1981]). The standard for determination is
`
`whether a verdict could not ha've been reached on any fair interpretation of the evidence."
`
`(Lolik v Big V Supermarkets,
`
`Inc.; 655 NE2d 163, 165 [N.Y. 1995]).
`
`Upon review of the facts and the relevant case law, the Court holds that judgment
`
`as a matter of law for' Defendant on liability is denied request
`
`for new trial on liability is
`
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`denied because the jury's verdict on liability is consistent with the weight of the evidence.
`
`However,
`
`the jury verdict
`
`is set aside and new trial
`
`is granted as to the past pain and
`
`suffering as well as the future pain and suffering damages awards because the future
`
`pain and suffering award was excessive and inconsistent with the weight of the evidence.
`
`Defendant's request
`
`to reduce the award for lost earnings is denied.
`
`Judgment as a Matter of Law on Liability
`
`Defendant argues that Plaintiff's alleged violation of the Vehicle and Traffic Law
`
`constituted negligence per se making Defendant entitled to judgment as a matter of law.
`
`Upon reviewing the facts and applicable case law, this Court finds that Defendant has not
`
`met
`
`the burden required to establish entitlement
`
`to judgment
`
`as a matter of
`
`law.
`
`Defendant
`
`relies on four cases to. support his argument; however,
`
`these cases are
`
`distinguishable from the present case because there were no issues of fact to be decided
`
`by the jury in those matters.
`
`The Court's determination that upon review of the evidence there were still
`
`issues
`
`of fact
`
`to go before the jury is part of
`
`the doctrine of
`
`law of
`
`the case. The Second
`
`Department has stated,
`
`The doctrine of the law of the case seeks to prevent relitigation of issues of
`law that have already been determined at an earlier stage of the proceeding
`(see Bellavia v Allied Elec. Motor Serv., 46 AD2d 807). The doctrine applies
`only to legal determinations that were necessarily resolved on the merits in
`a prior decision (see Gay v. Farella, 5 AD3d 540). The doctrine may be
`ignored in extraordinary circumstances such as a change in law or a showing
`of new evidence (see Foley v Roche, 86 AD2d 887; Brownrigg v New York
`City Housing Authority, 29 AD3d 721, 722 [2d Dept. 2006]) ..
`
`Here, Defendant moved for summary judgment based on the depositions of
`
`Plaintiff and Defendant, and the Court made a determination based on the evidence and
`
`papers submitted thatthere were still
`
`issues of material
`
`fact as to whether or not Plaintiff
`
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`came to a stop and failed to look for or yield to oncoming vehicles before crossing the
`
`roadway, warranting the denial of
`
`the Defendant's motion for summary judgement.
`
`Defendant once again moved for judgment as a matter of law at the close of trial but the
`
`motion was denied. Here, Defendant once again moves for judgment as a matter of law
`
`based on the trial testimonies which were identical
`
`to the depositions used to support the
`
`motion for summary judgment. Since the Defendant's present motion for judgement as
`
`a matter of law is not based on an extraordinary circumstance like new evidence or a
`
`change in law,
`
`it is inappropriate to disturb the doctrine of
`
`law for this case that
`
`the
`
`deposition evidence identical
`
`to the trial testimony presented issues of material
`
`fact to go
`
`before the jury~ Accordingly,
`
`the first branch of
`
`the Defendant's motion requesting
`
`judgment as a matter of law on liability is denied.
`
`New Trial Liability Verdict
`
`In the alternative, Defendant seeks a new trial on the issue of liability alleging the
`
`jury's verdict should be set aside because thefinding that Plaintiff Glynn's negligence was
`
`not a proximate cause of the accident
`
`is wholly inconsistent and against
`
`the weight of the
`
`evidence. Upon review of the relevant case law and the record,
`
`the Court denies this
`
`portion of Defendant's motion.
`
`It is well established that 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.
`
`(Brucaliere v Garlinghouse, 304 AD2d 782, 782 [2d Dept.
`
`2003]; see also Nicastro v Park, 113AD2d 129, 134 [2d Dept. 1985]). Further, a finding
`
`of negligence is not always inconsistent with a finding of no proximate cause as a person
`
`may have acted negligently but was not a proximate cause of the injury. (Pimpinella v
`
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`McSwegan, 213 A.D. 2d 232, 233 [1st Dept. 1995). '''A jury's finding that a party was at
`
`fault but that such fault was not a .proximate cause of the accident
`
`is inconsistent and
`
`against
`
`the weight of the evidence only when the issues are so inextricably interwoven
`
`as to make it logically impossible to find negligence without also finding proximate cause'"
`
`(Stewart v Marte, 91 AD 3d 754,755 [2d Dept 2012], quoting Garrett v Manaser, 8 AD 3d
`
`616, 617 [2d Dept 2004]). Additionally, U[w]here the verdict can be reconciled with a
`
`I
`
`reasonable view of the evidence,
`
`the successful party is entitled to the presumption that
`
`the jury adopted that view" (Bonomo v City of New York, 78 AD 3d 1094, 1094-95 [2d Dept
`
`2010], quoting Barnett v Schwartz, 47 AD3d 197,205 [2007]
`
`[citations omitted]) .
`
`.
`
`In the present case,
`
`the issues of negligence and proximate cause are not so
`
`inextricably'
`
`interwoven that
`
`the jury could have found Plaintiff negligent without also
`
`finding that he was the proximate cause of the accident. Defendant Altobelli cites the trial
`
`court decision in Yondo/a v. Trabu/sy, which was affirmed by the Second Department, as
`
`the main support
`
`for his motion for a new trial on liability because the jury's finding of
`
`negligence without proximate cause was so contrary to the weight of the evidence.
`
`In
`
`Yondo/a, the issue before the jury was whether or not the defendant saw and yielded to
`
`oncoming traffic after legally stopping at the stop sigl1. The jury returned a verdict after
`
`trial finding that the defendant was negligent but not a proximate cause of the accident
`
`The Appellate Court granted a new trial
`
`finding that
`
`the issues of negligence' and
`
`proximate cause were so inextricably interwoven that a finding of negligence without
`
`proximate cause was wholly inconsistent and contrary to the weight of the evidence.
`
`In contrast, a finding that Plaintiff Glynn was negligent but not a proximate cause
`
`of the accident would not be wholly inconsistent and contrary to the weight of the evidence
`
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`and Yondola is distinguishablE3 from the present case. Here, Plaintiff Glynn was travelling
`
`on Batten Road governed by a stop sign and Defendant Altobelli was travelling
`
`westbound on State Route 129. The exact manner
`
`in how the accident occurred is
`
`disputed, and the parties disagreed as to whether Plaintiff Glynn stopped at the stop sign
`to 9 1142 and 1172 of
`
`and whether he saw and/or yielded to oncoming traffic pursuant
`
`the Vehicle and Traffic Law. The jury was charged to determine issues of fact as to
`
`whether or not Defendant was negligent
`
`for either failing to stop at the stop sign or failing
`
`to see and/or yield to the other vehicle with the right of way before crossing the
`
`intersection to turn left.
`
`The Court disagrees with Defendant's assertion that Yondola is controlling here
`
`and concludes that
`
`in the present case,
`
`the issues of negligence and proximate cause
`
`are not inextricably interwoven. Plaintiff's Glynn could have been negligent
`
`in his manner
`
`of stopping at the stop sign before proceeding into the intersection, and could have
`
`entered the roadway when it was clear,
`
`thereby not being the proximate cause of the
`
`accident. Upon review of the relevant
`
`facts of the case, this is reasonable inference for
`
`the jury to make. "Where the verdict can be reconciled with a reasonable view of the
`
`evidence,
`
`the successful party is entitled to the presumption that
`
`the jury adopted that
`
`view" (Moffett-Knox
`
`v Anthony's Windows on Lake,
`
`Inc., 126 AD3d 768, 768 [2d Dept
`
`2015], quoting Bonomo, 126 AD3d at 1094-95).
`
`Accordingly,
`
`negligent
`
`the Court must conclude that the jury found that Plaintiff Glynn was
`to Vehicle and Traffic Law 9 1142 and
`
`for failing to stop at the sign pursuant
`
`1172, but proceeded into the intersection when it was clear and when there were no cars
`
`for whom to yield. Therefore,
`
`the portion of Defendant Altobelli's motion for an order
`
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`pursuant
`
`to CPLR 4404(a) to set aside the liability verdict of the jury is denied.
`
`Damages Verdict
`
`Defendant moves to set aside the jury verdict on damages and requests that the
`
`Court grant a new trial on the issue because the jury's future damages award was
`
`excessive,
`
`inconsistent, and contrary to the weight of the evidence. Defendant Altobelli
`
`argues that the award for future pain and suffering is excessive when compared to other
`
`cases with comparable and/or graver
`
`injuries, and that
`
`the award is inconsistent when
`
`compared to the jury's ,award for past damages. Plaintiff Glynn moves to set aside the
`
`jury verdict because it is not reasonable compensation for Plaintiff's injury and the Court
`
`erred in not including the testimony of Plaintiff Glynn and his wife in regards to their mental
`
`and emotional suffering. Upon review of the facts before the Court and relevant case law,
`
`the Court finds that the award for future pain and suffering deviates materially from what
`
`has been considered to be reasonable compensation by the Court for a comparable injury .
`
`and that the award for future pain and suffering is inconsistent with the lesser award for
`
`past pain and suffering. Accordingly,
`
`the Court grants this branch of Plaintiff's and
`
`Defendant's motion for a new trial on past and future pain and suffering awards.
`
`The amount of damages to be awarded in an action is primarily a question for the
`
`jury and that determination is entitled to great deference by the court
`
`(Coker v Bakkal
`
`Foods,
`
`Inc., 52 AD3d 765, 766 [2d Dept. 2008]). When assessing the adequacy of a
`
`jury's determination
`
`of past and future damages,
`
`the court will not disturb the jury's
`
`determination '''unless the award deviates materially from what would be reasonable
`
`compensation'"
`
`(Kayes v Liberati, 104 AD 3d 739, 741 [2d Dept. 2013], quoting Guallpa v
`
`Key Fat Corp., 98 AD3d 650, 651 [2d Dept. 2012]; see CPLR 5501 [c]). There is no precise
`
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`mathematical
`
`formula for assessing the adequacy of damages so the "reasonableness'.'
`
`of compensation is determined by examining the relevant precedent of comparable cases
`
`and making factual comparisons (Kayes, 104 AD3d at 741; see also Donlon v City of New
`
`York, 284AD2d 13, 14-15 [1st Dept. 2001]).
`
`In the case before the Court, Plaintiff suffered an injury to the hand medically
`
`characterized as a displaced intraarticular, commuted fracture of the thumb metacarpal
`
`or a Bennett Fracture. Plaintiff underwent surgery to repair the fracture and insert pins
`
`into his hand which were removed by a subsequent
`
`surgery.
`
`In addition, Plaintiff
`
`developed post
`
`traumatic arthritis; however, Plaintiff did have another
`
`form of arthritis
`
`prior to the accident, for which he had not experienced symptoms previously. Plaintiff also
`
`experienced fibrosis to the hand muscle and decreased motion in the thumb. Three years
`
`after the accident he was complaining of stiffness,
`
`lack of dexterity, occasional burning
`
`pain in the hand, and a constant
`
`low level pain. Plaintiff also introduced expert testimony
`
`from a doctor that it was "more likely than not" that Plaintiff will need surgery in the future.
`
`Plaintiff also testified that his injury interferes with his ability to play banjo and guitar,
`
`to
`
`work out, and to write and type computer code.
`
`However, upon review of the relevant
`
`facts and case law the Court finds that the
`
`jury's award for future pain and suffering is inconsistent with its award for past pain and
`
`suffering warranting that the damages verdict be set aside and a new trial on damages
`
`be held., The Court
`
`finds that
`
`the jury's finding of $24,000 for past pain and suffering
`
`(about $8,000 per year) for a period of three years is logically inconsistent with a ruling of
`
`$334,000 for the next 11 years for future pain and suffering (about $36,636.63 per year).
`
`The Appellate Division has held that when one element of
`
`the damages cannot be
`
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`reconciled with another element
`
`then the jury verdict should be set aside.
`
`(DePasquale
`
`v Klenetsky, 255 AD2d 546, 546-47 [2d Dept. 1998], see generally Powell v New York
`
`City Tr. Auth., 186 AD2d 728, 728-29 [2d Dept. 1992]).
`
`In DePasquale,
`
`the plaintiff
`
`suffered constant pain in his neck and back as a result of an accident
`
`for a four-year
`
`period prior to verdict, and the jury determined he would suffer the same or similar pain
`
`for one year following the verdict (DePasquale, 255 AD2d at 546). The jury awarded the
`
`plaintiff $20,000 for a period of four years (an averag~ of $5,000 per year) for past pain
`
`and suffering andawarded $50,000 for future damages for a period of one year (Id.). The
`
`Court held that on the record these two awards were logically incompatible and deviated
`
`materially from what would be reasonable compensation because the court reasoned that
`
`if the jury found it reasonable to only compensate the plaintiff with $20,000 for the previous
`
`the four years of past pain and suffering,
`
`it was unreasonable and incompatible to award
`
`the plaintiff $50,000 in future damages that span only one year.
`
`(Id;). Upon retrial,
`
`the
`
`Court affirmed the new $100,000 award for past pain and suffering.
`
`(Id.) Here,
`
`in the
`
`case before the Court, the jury awarded $24,000 for three years of past pain and suffering
`
`(about $8,000 per year) after reviewing all Plaintiff's evidence about his injury, but then
`
`awarded $334,000 for future pain and suffering for a span of 11 which is an increase from
`
`$8,000 per year to about $36,636.63 per year. Plaintiff
`
`testified that he had a low level
`
`constant pain,
`
`it interfered with his ability to play banjo and guitar, and his ability to
`
`workout, write, and type computer code. There was no evidence that
`
`the pain and
`
`suffering that Plaintiff Glynn would experience
`
`in the next eleven years would be
`
`astronomically more that the pain and suffering of the past three years. After the accident
`
`'and prior to trial, Plaintiff had to have surgery to insert pins and then remove them, had
`
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`to have a cast for several weeks, and could not work full time due to his injuries. Plaintiff
`
`testified that
`
`the pain eventually had subsided enough to return to full time work duties
`
`ten months after the accident and he was eventually able to r~sume some activities such.
`
`as riding his bike with hand, brakes regularly for forty-five minutes.
`
`Here, since the
`
`evidence of Plaintiff's issues/suffering prior to trial would be similar to the issues/suffering
`
`experienced after trial, the difference in the yearly compensation from $8,000 per year to
`
`about $36,636.63 per year is inconsistent and against
`
`the weight of the evidence.
`
`Plaintiff seeks a new trial to increase the award for past pain and suffering, but
`
`contends that when there is undisputed evidence of a permanent
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`injury as well as future
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`pain and suffering, and since Defendant Altobelli did not bring his own medical expert,
`
`the Court should uphold the jury's award for future pain and suffering. However,
`
`the lack
`
`of expert medical
`
`testimony presented by Defendant, does not prevent
`
`the Court
`
`from
`
`reviewing the jury's award for
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`future pain and suffering and engaging in a factual
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`comparison as to other cases with similarly situated litigants to determine if the jury's
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`verdict was a material deviation from what would be reasonable compensation and if it is
`
`contrary to the weight of the evidence including the expert
`
`reports (see Lariviere vNew
`
`York City Transit Authority,
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`131 AD 3d 1130, 1132 [2d Dept. 2015])
`
`("Under CPLR
`
`4404(a), a trial court has the discretion to order a new trial
`
`lin the interest of justice'
`
`II
`
`(CPLR 4404[a]; see Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376,
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`381]). Since the Court
`
`is granting the request
`
`for a new trial, the Court will not address
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`Plaintiff's arguments as to the past pain and suffering award.
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`Accordingly,
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`the Court grants this branch of Plaintiff's and Defendant's motion
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`seeking new trial on the issue of damages as to past and future pain and suffering
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`12 of 15
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`FILED: WESTCHESTER COUNTY CLERK 07/07/2017 09:36 AM
`NYSCEF DOC. NO. 104
`RECEIVED NYSCEF: 07/06/2017
`
`INDEX NO. 50517/2015
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`because the awards for past and future pain and suffering are inconsistent, and contrary
`
`to the weight of the evidence.
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`Inflammatory Comments
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`Defendant also moves to set aside the jury verdict on damages on the grounds
`
`that the Plaintiff used highly prejudicial
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`language in his opening statement. However, upon
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`review of the record and relevant case law, the court denies the motion on these grounds.
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`In order
`
`for a new trial
`
`to be granted on the grounds of
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`the misconduct of counsel,
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`counsel's conduct must be so inflammatory or prejudicial as to deprive the litigants of a
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`fair trial. Jun Suk Seo v Walsh, 82 AD3d 710, 710 [2d Dept. 2011], see also McArdle v.
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`Hurley, 51 AD 3d 741,742-43 [2d Dept. 2008]). The Court finds that Plaintiff's comments
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`were not so inflammatory or prejudicial as to deprive Defendant of a fair trial because the
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`comments did not raise any personal knowledge of facts at issue, allude to any matter
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`that would not be relevant or unsupported by admissible evidence, or try to influence the
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`jury in anyway prohibited by the law (see Rules of Professional Conduct, 3.4-3.5).
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`Although some of the comments by Plaintiff's counsel were not proper and Defendant's
`
`objections were sustained by the Court, the conduct of counsel must be viewed in light of
`
`the entire trial and after review, the court concludes that Plaintiffs counsel's actions were
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`not so pervasive or prejudicial, or so inflammatory as to deprive Plaintiff of a fair trial.
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`.
`
`Lariviere v New York City Transit Authority, 131 AD3d 1130, 1132 [2d Dept. 2015], see
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`Coma v City of New York, 97 AD 3d 715, 716, [2d Dept. 2012]; Jun Suk Sea v Walsh, 82
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`AD3d 710, 710 [2d Dept. 2011]; Bianco v. Flushing Hasp. Med.Ctr., 79 A.D.3d 777,779
`
`[2d Dept. 2010]).
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`Therefore,
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`the Court denies this branch of the Defendant's motion.
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`13 of 15
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`FILED: WESTCHESTER COUNTY CLERK 07/07/2017 09:36 AM
`NYSCEF DOC. NO. 104
`RECEIVED NYSCEF: 07/06/2017
`
`INDEX NO. 50517/2015
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`Award for Lost Earnings Should be Reduced
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`Defendant argues that the jury's award for damages should be reduced to $~0,962
`
`because on the Defendant's
`
`Interpretation of the' facts, Plaintiff
`
`is only entitled to that
`
`amount. Defendant points to portions of the record that show Plaintiff only had a sling for
`
`six weeks and he did not experience any numbness or tingling so he should only be
`
`allowed to recover for the time incapacitated. Plaintiff presented evidence which showed
`
`that despite only having a sling for six weeks, Plaintiff was partially incapacitated which
`
`prevented him from returning to full time work for ten months continuing to experience
`
`stiffness,
`
`lack of dexterity, and other discomfort
`
`in the hand. Defendant also argued that
`
`Plaintiff could perform certain job duties after the accident and his earnings had increased
`
`the second year following the accident. However,
`
`there was evidence presented that
`
`Plaintiff's average monthly earnings from the prior twenty-three months had dropped for
`
`the ten months after the accident when he was not able to work full time. Plaintiff also
`
`introduced evidence that after the ten months, his earnings returned to their normal
`
`level.
`
`When evidence and witnesses are presented at trial, the jury makes determinations of
`
`credibility and that determination is accorded a substantial amount of deference.
`
`(Berlelle
`
`v New York City Tr. Auth., 19 AD 3d 343, 343 [2d Dept. 2005]).
`
`It is reasonable that the
`
`jury determined that upon review of the evidence presented by both sides that Plaintiff
`
`did lose income over the ten months following the accident and awarded accordingly.
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`Therefore,
`
`the Court will not disturb the jury's verdict
`
`for lost earnings and denies this
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`branch of Defendant's motion.
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`Regarding Defendant's no-fault set off claim, such is an administrative
`
`issue
`
`between the parties and the insurance company.
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`14 of 15
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`FILED: WESTCHESTER COUNTY CLERK 07/07/2017 09:36 AM
`NYSCEF DOC. NO. 104
`RECEIVED NYSCEF: 07/06/2017
`
`INDEX NO. 50517/2015
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`Based on the foregoing,
`
`the Court hereby denies Defendant's motion for judgment
`
`as a matter of law or in the alternative for a new trial on liability. Upon review of Plaintiff
`
`Glynn's motion papers to set aside the jury's verdict as to past pain and suffering and
`
`Defendant Altobelli's motion to set aside the jury verdict as to future pain and suffering
`
`and upon review of the relevant case law, the Court orders a new trial on the issue of
`
`damages with regard to past pain and suffering and future pain and suffering.
`
`The
`
`foregoing constitutes the Opinion, Decision and Order of the Court.
`
`The parties are directed to appear before the Settlement Conference Part on
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`August 15, 2017 at 9:15 in Courtroom 1600 to schedule a re-trial on the issue of damages
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`with regard to past pain and suffering and future pain and suffering.
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`The foregoing constitutes the Opinion, Decision and Order of the Court ..
`
`Dated: White Plains, New York
`June 30, 2017
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`HON. SAM D. WALKER, J.S.C.
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`15 of 15
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`