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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,
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`Plaintiff,
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`-against-
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`'
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`DECISION & ORDER
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`Index No: 50517/2015
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`THOMAS J. ALTOBELLl
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`‘
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`Seq# 4 & 5
`
`_________________________________ -.__..._._._.__.X
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`Defendant
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`Plaintiff Martin Glynn and Defendant Thomas J. Altobelli both move this Court
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`pursuant to CPLR 4404 to set aside the liability and damages verdicts directing judgment
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`as a matter of law or in the alternative, for new trials as to liability and damages.
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`The following papers were read on Plaintiff Martin Glynn's and Defendant Thomas
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`J. Altobelli’s motions:
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`'
`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 A-H
`Memorandum of Law in Support
`Exhibit 1
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`FACTUAL AND PROCEDURAL BACKGROUND
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`'
`
`WERE—D
`1-8
`9-16
`17
`18-27
`28
`29
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`'
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`'
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`Plaintiff, Martin Glynn (“Glynn") commenced this action to recover damages arising
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`from a motor vehicle/bicycle accident with Defendant, Thomas J. Altobelli ("Altobelli")
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`1 of 17
`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,
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`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
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`governed by a stop sign where it intersects with Route 129. What happened next is highly
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`contested, but Plaintiff Glynn claims that before entering the road he came to a stop and
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`looked left to make sure there was no oncoming traffic so he could safely enter the two
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`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
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`. Plaintiff entering the intersection, Defendant Altobelli's vehicle approached the
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`intersection while speeding, Defendant crossed the double yellow line into oncoming
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`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 fracturel(onne to insert pins and the other to remove them), he had
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`to wear a cast for several weeks, and he unden/vent physical therapy. Plaintiff filed this
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`action to recover for past and future pain and suffering as well as lost earnings for the
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`period he wasunable to work to his fullest capacity due to the injUry.
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`Defendant Altobelli moved for summaryjudgment, pursuant to CPLR 3212, which
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`was denied by the Court (Lubell, J.), finding that Plaintiff raised some material questions
`
`of fact 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‘
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`dated Sept. 22, 2016 [Lubell, J.]).
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`The case proceeded to a bifurcated trial before this Court. On the issue of liability,
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`2 of 17
`thejury found both Plaintiff and Defendant to be negligent, but found that only Defendant‘s
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`7
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`/ %
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`.- w.A
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`$§
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`'
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`5
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`negligence was a proximate cause and substantial factor in causing the accident.
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`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.
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`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
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`as a matter of law or in the alternative, fer a new trial as to liability and damages.
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`Defendant argues that a finding that Plaintiffs negligence was not a proximate cause of
`the accident is inconsistent and contrary to the weight of the evidence; that the damages
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`verdict should be set aside as excessive, inconsistent and contrary to the weight of the
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`evidence; that the damages verdict should be set aside since Plaintiff's attorney used
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`inflammatory and highly prejudicial language during opening statements; and that the
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`award for lost earnings should be reduced by amounts awarded by no fault benefits, and
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`reduced to $10,962.
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`Plaintiff argues that Defendant is not entitled to judgment as a matter of law due to
`there being issues of factfor 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
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`appropriate and consistent; that Plaintiff’s comments do not warrant a new trial; and that
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`the award for lost earnings should'not be reduced.
`Plaintiff also files his own motion pursuant to CPLR 4404 to set aside the award
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`for past pain and suffering because it materially deviates from what would be reasonable
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`compensation and argues that the Court erred in precluding the testimony of Glynn and
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`his wife Kate with respect to mental and emotional suffering. Defendant opposes, arguing
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`3 of 17
`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
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`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 partyentitled 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.
`-
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`.“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
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`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 AD3d 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,
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`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
`4 of 17
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`denied because the jury’s verdict on liability is consistent with the weight of the evidence.
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`However, the jury verdict is set aside and new trial is granted as to the past pain and
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`suffering as well as the future pain and suffering damages awards because the future
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`pain and suffering award was excessive and inconsistent with the weight of the evidence.
`
`Defendant's request to reduce the award for lost earnfiigs is denied.
`
`Judgment as a Matter of Law on Liability
`
`Defendant argues that Plaintiff's alleged violation of the \lehicle and Traffic Law
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`constituted negligence per se making Defendant entitled to judgment as a matter of law.
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`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.
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`Defendant relies on four cases to-support his argument; however, these cases are
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`distinguishable from the present case because there were no issues of fact to be decided
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`by the jury in those matters.
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`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
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`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 ADZd 807). The doctrine applies
`only to legal determinations that were necessarily resolved on the merits in
`a prior decision (see Gay v. Fare/la, 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 movedfor summary judgment based on the depositions of
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`Plaintiff and Defendant, and the Court made a determination based on the evidence and
`5 of 17
`papers submitted that'there 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
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`roadway, warranting the denial of the Defendant’s motion for summary judgement.
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`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 forjudgment as a matter of law
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`baSed on the trial testimonies which were identical to the depositions used to support the
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`motion for summary judgment. Since the Defendant’s present motion for judgement as
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`a matter of law is not based on an extraordinary circumstance like new evidence or a
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`change in law.
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`it
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`is inappropriate to disturb the doctrine of law for this case that the
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`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
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`judgment as a matter of law on liability is denied.
`New Trial Liability Verdict
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`In the alternatiVe, Defendant seeks a new trial on the issue of liability alleging the
`jury's verdict should beset aside because the finding that Plaintiff Glynn's negligence was
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`not a proximate cause of the accident is wholly inconsistent and against the weight of the
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`evidence. Upon review of the relevant case law and the record, the Court denies this
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`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 Gar/inghouse, 304 ADZd 782, 782 [2d Dept.
`
`2003]; see also Nicastro v Park, 113 AD2d 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. (Pimpine/Ia v
`6 of 17
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`McSwegan, 213 AD. 2d 232, 233 [15‘ 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
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`against the weight of the evidence only when the issues are so inextricably inten~oven
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`as to make it logically impossible to find negligence without also finding proximate cause'"
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`(Stewart v Marie, 91 AD 3d 754, 755 [2d Dept 2012], quoting Garrett v Manaser, 8 AD 3d
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`616, 617 [2d Dept 2004]). Additionally, “[w]here the verdict can be reconciled with a
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`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 AD3d 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'intenNoven 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
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`court decision in Yondola 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
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`negligence without proximate cause was so contrary to the weight of the evidence.
`
`In
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`Yondola, the issue before the jury was whether or not the defendant saw and yielded to
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`oncoming traffic after legally stopping at the stop sign. The jury returned a verdict after
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`trial finding that the defendant was negligent but not a proximate cause of the accident
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`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 note proximate cause
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`7 of 17
`of the accident would not be wholly inConsistent and contrary to the weight ofthe evidence
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`and Yondola is distinguishable from the present case. Here, Plaintiff Glynn was travelling
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`on Batten Road governed by a stop sign and Defendant Altobelli was travelling
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`westbound on State Route 129. The exact manner in how the accident occurred is
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`disputed, and the parties disagreed as to whether Plaintiff Glynn stopped at the stop sign
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`and whether he saw and/or yielded to oncoming traffic pursuant to § 1142 and 1172 of
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`the Vehicle and Traffic Law. The jury was charged to determine issues of fact as to
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`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
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`intersection to turn left.
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`The Court disagrees with Defendant’s assertion that Yondola is controlling here
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`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
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`of stopping at the stop sign before proceeding into the intersection, and could have
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`entered the roadway when it was clear, thereby not being the proximate cause of the
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`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
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`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
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`2015], quoting Bonomo, 126 AD3d at 1094-95).
`
`I Accordingly, the Court must conclude that the jury found that Plaintiff Glynn was
`negligent for failing to stop atthe sign pursuant to Vehicle and Traffic Law § 1142 and
`1172, but proceeded into the intersection when it was clear and when there were no cars
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`for whom to yield. Therefore, the portion of Defendant Altobelli’smotion for an order
`8 of 17
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`pursuant to CPLR 4404(a) to set aside the liability verdict of the jury is denied.
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`Damages Verdict
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`.
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`Defendant moves to set aside the jury verdict on damages and requests that the
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`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
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`cases with comparable and/or graver injuries. and that the award is inconsistent when
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`compared to the jury’staward for past damages. Plaintiff Glynn moves to set aside the
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`jury verdict because it is not reasonable compensation for Plaintiff's injury and the Court
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`erred in not including the testimony of Plaintiff Glynn and his wife in regards to their mental
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`and emotional suffering. Upon review of the facts before the Court and relevant case law,
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`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 ,
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`and that the award for future pain and suffering is inconsistent with the lesser award for
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`past pain and suffering. Accordingly.
`
`the Court grants this branch of Plaintiff‘s and
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`Defendant's motion for a new trial on past and future pain and suffering awards.
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`The amount of damages to be awarded in an action is primarily a question for the
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`jury and that determination is entitled to great deference by the court
`
`(Coker v Bakkal
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`Foods, Inc., 52 AD3d 765, 766 [2d Dept. 2008]). When assessing the adequacy of a
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`jury's determination of past and future damages, the court will not disturb the jury's
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`determination “'unless the award deviates materially from what would be reasonable
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`compensation” (Kayes v Liberati, 104 AD3d 739. 741 [2d Dept. 2013], quoting Guallpa v
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`9 of 17
`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 Don/on v.City ofNew
`
`York, 284 AD2d 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 undewvent 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
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`priorto 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.
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`Plaintiff also testified that his injury interferes with his ability to play banjo and guitar, to
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`work out, and to write and type computer code.
`However, upon review of the relevant facts and case law the Court finds that the .
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`jury's award for future pain and suffering is inconsistent with its award for past pain and
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`suffering warrantingthat the damages verdict be set 'aside and a new trial on damages
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`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).
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`The Appellate Division has held that when one element of the damages cannot be
`10 of 17
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`'(DePasqua/e
`reconciled with another element then the jury verdict should be set aside.
`v Klenetsky, 255 AD2d 546, 546-47 [2d Dept. 1998], see. generally Powell v New York
`
`In DePasqua/e, the plaintiff
`City Tr. Auth., 186 AD2d 728,. 728-29 [2d Dept. 1992]).
`suffered constant pain in his neck andback 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 (DePasqua/e, 255 AD2d at 546). The jury awarded the
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`plaintiff $20,000 for a period of four years (an average of $5,000 per year) for past pain
`and suffering and awarded $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
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`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 Plaintiffs 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
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`constant pain,
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`it interfered with his ability to play banjo and guitar, and his ability to
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`workout, write, and type computer code. There was no evidenCe that the pain and
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`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
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`'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
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`testified that the pain eventually had subsided enough to return to full time work duties
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`ten months after the accident and he was eventually able to resume some activities such”
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`as riding his bike with handbrakes regularly for forty-five minutes. Here, since the
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`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
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`about $36,636.63 per year is inconsistent and against the weight of the evidence.
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`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 injury as well as future
`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
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`reviewing the jury’s award for 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
`verdict was a material deviation from what would be reasonable compensation and if it is
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`contrary to the weight of the evidence including the expert reports (see Lariviere vNew
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`. York City Transit Authority, 131 AD3d 1130, 1132 [2d Dept. 2015]) (“Under CPLR
`4404(a), a trial court has the discretion to order a new trial 'in the interest of justice’ “
`(CPLR 4404[a]; see Mica/lefv Mieh/e Co, Div. of MiehIe—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, the Court grants this branch of Plaintiffs 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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`FILED: WESTCHESTER COUNTY CLERK 07m2017 03:17 P I
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`FILED: WESTCHESTER COUNTY CLERK‘O7m2017 09:36 AM
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`because the awards for past and future pain and suffering are inconsistent, and contrary
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`to the weight of the evidence.
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`lnflammatog 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 language in his opening statement. However, upon
`review of the record and relevant case law, the court denies themotion on these grounds.
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`In order for a new trial to be granted on the grounds of 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 Sec V Walsh. 82 AD3d 710, 710 [2d Dept. 2011], see also McArd/e v.
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`Hufley, 51 AD3d 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).
`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
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`the entire trial and after review, the court concludes that Plaintiff’s 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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`,
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`Lan'viere 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 AD3d 715, 716, [2d Dept. 2012]; Jun Suk Seo v Walsh, 82
`AD3d 710, 710 [2d Dept. 2011]; Bianco .v. Flushing Hosp. Med: Ctr., 79 A.D.3d 777, 779
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`[2d Dept. 2010]),
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`Therefore, the Court denies this branch of the Defendant’s motion.
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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 $10,962
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`because on the Defendant's interpretation of the‘ facts, Plaintiff is only entitled to that
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`amount. Defendant points to portions of the record that show Plaintiff only had a sling for
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`six weeks and he did not experience any numbness or tingling so he should only be
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`allowed to recover for the time incapacitated. Plaintiff presented evidence which showed
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`that despite only having a sling for six weeks, Plaintiff was partially incapacitated which
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`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
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`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
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`Plaintiff's average monthly earnings from the prior twenty—three months had dropped for
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`the ten months after the accident when he was not able to work full time. Plaintiff also .
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`introduced evidence that after the ten months, his earnings returned to their normal level.
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`When evidence and witnesses are presented at trial, the jury makes determinations of
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`credibility and that determination is accorded a substantial amount of deference. (Bertelle
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`v New York City Tr. Auth., 19 AD3d 343, 343 [2d Dept. 2005]).
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`It is reasonable that the
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`jury determined that upon review of the evidence presented by both sides that Plaintiff
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`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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`,
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`'
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`Regarding Defendant‘s no-‘fault set off claim, such is an administrative issue
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`between the parties and the insurance company.
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`Based on the'foregoing. the Court hereby denies Defendant's motion for judgment
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`as a matter of law or inthe alternative for a new trial on liability. Upon review of Plaintiff
`Olynn’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
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`damages with regard to past pain and’suffering and fUture pain and suffering. The
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`foregoing constitutes the Opinion, Decision and Order of the Court.
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`The parties are directed to appearbefore the Settlement Conference Part on
`August 15, 2017 at 9:15 in Courtroom 1600 to schedule a re-trial o