FILED: WESTCHESTER COUNTY CLERK 07/12/2017 09:42 AM
`NYSCEF DOC. NO. 106
`RECEIVED NYSCEF: 07/12/2017
`
`INDEX NO. 50517/2015
`
`FILED: WETCHESTER COUNTY CLERK UTEE’2017 09: 42
`NYSC. 3F DOC. NI. 106
`
`
`
`
`
`
`
`INDEX
`
`NO.
`
`fiD NYSC
`
`SE:
`
`50517/ 015
`
`07/12/ 017
`
`JDJ/de
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF WESTCHESTER
`
`QAQEQEMT"""""""""""""""""""X
`
`EQELQEJELJQEEAL
`
`Plaintiff,
`
`—against—
`
`THOMAS ALTOBELLI,
`
`Index No.:
`
`50517/2015
`
`Defendants.
`_______________________________________ X
`
`PLEASE TAKE NOTICE,
`
`that defendant
`
`THOMAS ALTOBELLI by his
`
`attorneys DOWNING,
`
`& PECK, P.C. hereby appeals to the Supreme Court
`
`State of New York, Appellate Division, Second Department,
`
`from the
`
`June 30, 2017 decision and order of Honorable Justice Sam D. Walker
`
`(a copy of which is annexed hereto and made a part hereof)
`
`but
`
`appeals only to the extent
`
`that
`
`said Honorable
`
`Court denied
`
`Defendant's motion for a new trial on the issue of liability.
`
`Dated:
`
`New York, New York
`
`July 12, 2017
`
`
`
`PECK, P.C.
`
`
`eys for Defendant
`'Battery Place - 7” Floor
`New York, New York 10004
`212-514—9190
`
`TO:
`
`SULLIVAN & BRILL, LLP
`
`Attorneys for Plaintiff
`115 Broadway — 17“ Floor
`New York, New York 10006
`212—566-1000
`
`1 of 21
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`

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`FILED: WESTCHESTER COUNTY CLERK 07/12/2017 09:42 AM
`NYSCEF DOC. NO. 106
`RECEIVED NYSCEF: 07/12/2017
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`INDEX NO. 50517/2015
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`FILED: WESTCHESTER COUNTY CLERK 07m2017 09:42 ‘
`NYSCEF DOC. NO. 106
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`INDEX “(3- 50517/2015
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`RnCnIVnD NYSCEF: 07/12/2017
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`fiupreme (flourt of the State of Kain Earle
`cZhupellate gfiifiiswn: fiecnnh Enhtcial Espartment
`
`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).
`
`Case Title: Set forth the title of the case as it appears on the summons, noticeoi petItlon or
`
`For Court of Original Instance
`
`MARTIN GLYNN,
`
`order to Show cause by thch the matter was or is to be commenced, or as amended.
`
`
`Plaintiff,
`
`Dale Notice of Appeal Filed
`
`‘
`
`For Appellate Division
`
`THOMAS ALTOBELLI,
`
`Defendant,
`
`Case Type
`El Civil Action
`C] CPLR article 75 Arbitration
`
`CI CPLR article 78 Proceeding
`Cl Special Proceeding Other
`D Habeas Corpus Proceeding
`
`D 2 Human Rights
`Cl 3 Licenses
`
`CI 3 Religious
`CI 4 Not-for-Profit
`
`CI 8 Equitable Distribution
`Cl 9 Exclusive Occupancy of
`Residence
`
`Assault Battery. False
`Imprisonment
`J 2 Conversion
`J 3 Defamation
`.J 4 Fraud
`
`'J 5
`
`Intentional Infliction of
`Emotional Distress
`Interference with Contract
`.J 6
`L] 7 Malicious Prosecution/
`Abuse of Process
`
`CI 8 Malpractice
`[Z 9 Negligence
`C110 Nuisance
`
`D 11 Products Liability
`CI 12 Strict Liability
`El 13 Trespass and/or Waste
`314 Other
`
`U4 Employment
`Insurance
`
`a 5 Real Property
`
`Charter 55 120, 127-f, or
`129
`CI 2 Eminent Domain Proced-
`ure Law § 207
`El 3 General Municipal Law
`§ 712
`2 of 21
`04 Labor Law § 220
`
`E] 2 Discovery
`D 3 Probate/Administration
`D 4 Trusts
`CI 5 Other
`
`n
`
`
`Filing Type
`D Transferred Proceeding
`
`2 Appeal
`CI CPLR 5704 Review
`
`
`Cl Original Proceeding
`Nature of Suit: Check up to five of the iollowmg categories which best reflect the nature of the case
`
`A. Administrative Reviéw I‘ " .D'._Do(_nastic.___Relations
`-_-'
`'i-_'. Prisoners“ '_
`__
`
`
`Freedom of Information Law Cl
`1 Adoption
`Discipline
`
`
`Jail Time Calculation
`Cl 2 Attorney's Fees
`
`
`
`D 3 Parole
`Cl 3 Children - Support
`
`
`
`Other
`Cl 4 Children - Custody/Visitation
`a 4 Public Employment
`
`
`
`Social Services
`C] 5 Children - Terminate Parent-
`
`
`al Rights
`6. Rea/Property
`'
`
`
`
`L] 1 Condemnation
`CI 6 Children - Abuse/Neglect
`
`
`
`
`D 2
`D 7 Children - JD/PINS
`B. Business 8: Other Relationships
`Determine Title
`
`
`
`D 3 Easements
`Partnership/Joint Venture
`
`
`
`Cl 4 Environmental
`El 2 Business
`
`
`
`CI 5 Liens
`
`
`
`C] 10 Expert's Fees
`CI 6 Mortgages
`
`
`
`CI 7 Partition
`CI 11 Maintenance/Alimony
`
`
`
`Cl 8 Rent
`Cl 12 Marital Status
`
`
`
`
`CI 9 Taxation
`'C.'Cdfitréctt
`-'
`.
`i C113 Paternity
`
`
`
`D 10 Zoning
`El 14 Spousal Support
` Brokerage
`
`
`
`C] i 1 Other
`0 15 Other
`E] 2 Commercial Paper
`
`
`
`Cl 3 Construction
`
`
`5. Miscalla'rjeous‘
`
`El 1 Constructive Trust
`
`C] 2 Debtor & Creditor
`
`B 3 Declaratory Judgment
`
`
`
`
`u 3 Secured
`C] 4 Election Law
`
`
`CI 5 Notice of Claim
`
`
`
`D 6 Other
`
`
`
`'
`
`H. Statutory
`CI 1 City of Mount Vernon
`
`J. Wills & Estates
`D 1 Accounting
`
`
`
`
`

`

`FILED: WESTCHESTER COUNTY CLERK 07/12/2017 09:42 AM
`NYSCEF DOC. NO. 106
`RECEIVED NYSCEF: 07/12/2017
`
`INDEX NO. 50517/2015
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`FILED: WESTCHESTER COUNTY CLERK 07m2017 09:42 .
`NYSCEF DOC. NO. 106
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`
`INDEX \TO- 50517/2015
`l
`
`
`
`
`R«C«IV«D NYSCEF: 07/12/2017
`
`Paper Appealed From (check one only):
`Ci Amended Decree
`Cl Determination
`
`Order
`
`CI Resettled Order
`
`Ci Amended Judgment
`Cl Amended Order
`
`Cl Finding
`C] Interlocutory Decree
`Ci Interlocutory Judgment
`Ci Judgment
`
`El Order &Judgment
`D Partial Decree
`Cl Resettled Decree
`D Resettied Judgment
`
`D Ruling
`D Other (specify):
`
`Jury D Non-Jury
`If Yes:
`_Trial: Yes D No
`.r..1_.
`l
`92.}:
`'*'
`'
`
`, Prion Unperfectedep‘péal information
`
`-
`
`.-
`
`If yes, do you intend to perfect the appeal or appeals
`Are any unperfected appeals pending in this case? D Yes E No.
`covered by the annexed notice of appeal with the prior appeals? D Yes
`Ci No. Set forth the Appellate Division Cause
`Number(s) of any prior, pending, unperfected appeals:
`
`Specify the issues proposed to be raised on the appeal, proceeding, or application for CPLR 5704 review.
`
`Commenced by: D Order to Show Cause
`
`El Notice of Petition D Writ of Habeas Corpus
`
`Date Filed:
`
`Original Proceeding
`
`Statute authorizing commencement of proceeding in the Appellate Division:
`
`Proceeding Transferred Pursuant to CPLR 7804(9)
`Court:
`
`Judge (name in full):
`
`Order of Transfer Date:
`
`CPLR 5704 Review of Ex Parte Order
`
`Judge (name in full):
`
`Description of Appeal, Proceeding or Application and Statement of Issues
`
`If the appeal is from an order, specify the relief requested
`If an appeal, briefly describe the paper appealed from.
`Description:
`and whether the motion was granted or denied.
`If an original proceeding commenced in this court or transferred pursuant to
`CPLR 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.
`
`This is an appeal from the June 30, 2017 decision and order of Justice Sam D. Walker which denied in part and granted
`in part defendant's post-trial motion to set aside the verdict and order new trials on liability and damges. Defendant now
`appeals only from the decision to the extent that it denied the motion for a new trial on the issue of liability where
`plaintiff/bicyclist was travelling on a road governed by a stop sign and defendant travelling on a road with no traffic control
`device and with the right-of-way, was it in error to deny a new trial on liability where the jury found that plaintiff was
`negligent but that such negligence was not a proximate cause of the accident.
`If an appeal is from a money judgment, specify the amount awarded.
`
`3 of 21
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`

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`FILED: WESTCHESTER COUNTY CLERK 07/12/2017 09:42 AM
`NYSCEF DOC. NO. 106
`RECEIVED NYSCEF: 07/12/2017
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`INDEX NO. 50517/2015
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`FILED: WESTCHESTER COUNTY CLERK 07m2017 09:42 ‘
`NYSCEF DOC. NO. 106
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`INDEX “(3- 50517/2015
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`R«C«IV«D NYSCEF: 07/12/2017
`
`Issues Continued:
`
`
`'
`‘4.
`Adtfiiéb‘riéil‘lfitmmierf
`“#3?be
`Party Information
`
`Fill in the name of each party to the action or proceeding, one
`Examples of a party's original status include: plaintiff, defendant,
`
`
`petitioner,
`If this form is to be filed for an appeal, indicate the status of the
`respondent,
`claimant, defendant
`third-party plaintiff.
`third~partv
`party in the court of original instance and his, her, or its status in this court. if defendant, and intervenor.
`Examples of a party's Appellate Division status
`
`If this form is to be filed for a proceeding commenced in this court, fill
`in
`include:
`appellant,
`respondent.
`appellant-respondent,
`respondent-appellant,
`only the party's name and his, her, or its status in this court.
`petitioner, and intervenor.
`
`
`1 MARTIN GLYNN
`
`RESPONDENT
`
`THOMAS ALTOBELLI
`
`DEFENDANT
`
`APPELLANT
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` _n_|_.\_a._L—s_x_|_:
`
`______J____
`
`l
`
`___i
`
`
`
`
`
`4 of 21
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`FILED: WESTCHESTER COUNTY CLERK 07/12/2017 09:42 AM
`NYSCEF DOC. NO. 106
`RECEIVED NYSCEF: 07/12/2017
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`INDEX NO. 50517/2015
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`FILED: WESTCHESTER COUNTY CLERK 07m2017 09:42 :
`NYSCEF DOC. NO. 106
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`INDEX “(3- 50517/2015
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`ReCeIVeD NYSCEF: 07/12/2017
`
`Attorney Information
`Fill in the names of the attorneys or firms of attorneys for the
`provided.
`the box
`that a litigant represents herself or himself,
`In the event
`respective parties.
`if this form is to be filed with the notice at petition or order
`to show cause by which a special proceeding is to be commenced in the marked "Pro Se" must be checked and the appropriate information for that
`Appellate Division, only the name of the attorney for the petitioner need be
`litigant must be supplied in the spaces provided.
`
`Attorney/Firm Name: SULLIVAN & BRILL, LLP
`
`Address: 115 Broadway - 17th FIOOI’
`City: New York
`Attorney Type:
`
`Retained
`
`Zip: 10006
`State: NY
`Ci Assigned
`CI Government
`
`Telephor-IeNo.:212-566-1000"
`0 Pro Se
`Cl Pro T—lac Vi_ce _
`
`Party or Parties Represented (set forth party numberls] from table above or from Form C):
`
`Attorney/Firm Name: DOWNING & PECK. P.C.
`Address: 17 Battery Place - Suite 709
`City: New York
`
`State: N?
`
`Zip:_10004
`
`Telephone Iii-2155743130“
`
`Attorney Type:
`
`C] Retained
`
`L2 Assigned
`
`Cl Government
`
`Cl Pro Se
`
`Cl Pro Hac Vice
`
`Party or Parties Represented (set forth party numberls] from table above or from Form C):
`
`Attorney/Firm Name:
`
`
`
`State:
`
`Zip:
`
`
`
`
`
`
`
`
`
`Attorney Type: El Government D Retained El Assigned
`
`Party or Parties Represented (set forth party numberls] from table above or from Form C):
`
`Attorney/Firm Name:
`
`Attorney/Firm Name:
`
`Attorney Type:
`C] Retained
`Cl Assigned
`Ci Government
`Party or Parties Represented (set forth party numberls] from table above or from Form C):
`Attorney/Firm Name:
`
`2] Pro Se
`
`D Pro Hac Vice
`Emma"
`
`State:
`
`Zip:
`
`Telephone No.:
`
`Attorney Type:
`
`CI Retained
`
`Cl Assigned
`
`Zip:
`Telephone No.:
`Cl Government “ElPro Se
`CI Pro Hac Vice
`
`xplained‘ln'5 670.3:of1iiemisc]of theAppellate Divjsion, Second Department (22 NYCRR 670.3) If
`The t'iseof'this farm
`this form :3 to
`filed fer?ant appea‘l‘piece“the -re"quired_:‘papers in the rfollowinglorder: (1) the Request for Appellate Division
`intervention[Fem, this document], (2)' -:_any;.required Additional Appeal Information Forms [Form B]
`{3) any required
`(.4) .the notice of appeal or order granting leave to appeal. (5) a
`Additio’rviaxl‘ri’artuand .tt'pr'n'e'y InformatIon :Forms [Form C],
`5 of 21
`copy:-of thepep! prpapersfrom which [theappealora" "eels covered in the notice of appeal or order granting leave to appeal
`is.orare taken; and(6) _e_}.copy:of the"depis
`or;decision ofthecourt of original instance, if any.
`
`

`

`FILED: WESTCHESTER COUNTY CLERK 07/12/2017 09:42 AM
`NYSCEF DOC. NO. 106
`RECEIVED NYSCEF: 07/12/2017
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`INDEX NO. 50517/2015
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`FILED: WESTCHESTER COUNTY CLERK 071-32017 09:42 ,
`NYSCEF DOC. NO. 106
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`INDEX 10- 50517/2015
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`RfiCfiIVfiD NYSCEF: 07/12/2017
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`lFILED: WESTCHESTER COUNTY CLERK 0720722017 09:36 E INDEX ”0' 50517/2015
`NYSCEF DOC. NO. 104
`RECEIVED NYSCEF: 07/06/2017
`
`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,
`
`-against-
`
`Plaintiff,
`
`THOMAS J. ALTOBELLI
`
`_________________________________________x
`
`Defendant.
`
`DECISION & ORDER
`Index No: 50517/2015
`Seq# 4 & 5
`
`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 A—H
`Memorandum of Law in Support
`Exhibit 1
`
`’
`
`FACTUAL AND PROCEDURAL BACKGROUND
`
`NUMBERED
`
`1-8
`9-16
`17
`18-27
`28
`29
`
`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
`
`6 of 21
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`FILED: WESTCHESTER COUNTY CLERK 07/12/2017 09:42 AM
`NYSCEF DOC. NO. 106
`RECEIVED NYSCEF: 07/12/2017
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`INDEX NO. 50517/2015
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`FILED: WESTCHESTER COUNTY CLERK 07m2017 09:42 .
`NO. 106
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`50517/2015
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` FILED:
`NYSCEF DOC. NO. 104
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`iNDEX NO. 50517/2015
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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 unden/vent 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 summaryjudgment, pursuant to CPLR 3212, which
`
`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
`
`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
`
`7 of 21
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`FILED: WESTCHESTER COUNTY CLERK 07/12/2017 09:42 AM
`NYSCEF DOC. NO. 106
`RECEIVED NYSCEF: 07/12/2017
`
`INDEX NO. 50517/2015
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`FILED: WESTCHESTER COUNTY CLERK 071-32017 09:42 .
`NYSCEF DOC. NO. 106
`
`
`INDEX 10- 50517/2015
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`R«C«IV«D NYSCEF: 07/12/2017
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`FILED: WESTCHESTER COUNTY CLERK 07 07 2017 09,?36 -
`NYSCEF DOC. NO. 104
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`”INDEX NO- 5051772015
`RECEIVED NYSCEF: 07/06/2017
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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 Plaintiffs 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
`
`8 of 21
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`FILED: WESTCHESTER COUNTY CLERK 07/12/2017 09:42 AM
`NYSCEF DOC. NO. 106
`RECEIVED NYSCEF: 07/12/2017
`
`INDEX NO. 50517/2015
`
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`INDEX 10- 50517/2015
`I
`FILED: WESTCHESTER COUNTY CLERK 071-32017 09:42 ,
`
`
`
`
`
`R«C«IV«D NYSCEF: 07/12/2017
`NYSCEF DOC. NO. 106
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`
`FILED: WESTCHES'I'ER COUNTY CLERK 07 07 ‘2017 09:36 ‘
`NYSCEF DOC. NO. 104
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`INDEX NO- 50517/2015
`RECEIVED NYSCEF: 07/06/2017
`
`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 Vittig/io v Gaun'no, 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,
`
`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 ADZd 648, 651 [2d Dept. 1981]). The standard for determination is
`
`whether a verdict could not have 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
`
`9 of 21
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`FILED: WESTCHESTER COUNTY CLERK 07/12/2017 09:42 AM
`NYSCEF DOC. NO. 106
`RECEIVED NYSCEF: 07/12/2017
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`INDEX NO. 50517/2015
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`FILED: WESTCHESTER COUNTY CLERK 07m2017 09:42 A
`NO. 106
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`INDEX
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`V0. 50517/2015
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`3F: 07/12/2017
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`FILED: NYSCEF DOC. NO. 104
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`‘INDEX N5. 55515720I5 '
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`RECEIVED NYSCEF:
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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.
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`Defendant's request to reduce the award for lost earnings is denied.
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`Judgment as a Matter of Law on Liability
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`Defendant argues that Plaintiff's alleged violation of the Vehicle 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
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`met the burden required to establish entitlement to judgment as a matter of
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`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
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`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,
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`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/Ia, 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 ADZd 887; Brownn'gg v New York
`City Housing Authority, 29 AD3d 721, 722 [2d Dept. 2006]).
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`Here, Defendant moved for 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
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`papers submitted that there were still issues of material fact as to whether or not Plaintiff
`10 of 21
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`FILED: WESTCHESTER COUNTY CLERK 07/12/2017 09:42 AM
`NYSCEF DOC. NO. 106
`RECEIVED NYSCEF: 07/12/2017
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`INDEX NO. 50517/2015
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`FILED: WESTCHESTER COUNTY CLERK 07m2017 09:42 ‘
`NYSCEF DOC. NO. 106
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`INDEX \IO- 50517/2015
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`RECEIVED NYSCEF: 07/12/2017
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`41R COUNTY CLERK 0720722§17 09:36 E INDEX NO- 50517/2015
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`F%
`Nhkfip.:
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`.e 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
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`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 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
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`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.
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`New Trial Liabiliy Verdict
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`in the alternative, Defendant seeks a new trial on the issue of liability alleging the
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`jury’s verdict should be set aside because thefinding 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.
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`It is well established that a jury verdict should not be set aside as contrary to the
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`weight of the evidence unless the jury could not have reached the verdict by any fair
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`interpretation of the evidence.
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`(Bruca/iere v Garlinghouse. 304 ADZd 782. 782 [2d Dept.
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`2003]; see also Nicastro v Park, 113 AD2d 129, 134 [2d Dept. 1985]). Further. a finding
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`of negligence is not always inconsistent with a finding of no proximate cause as a person
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`may have acted negligently but was not a proximate cause of the injury. (Pimpinella v
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`FILED: WESTCHESTER COUNTY CLERK 07/12/2017 09:42 AM
`NYSCEF DOC. NO. 106
`RECEIVED NYSCEF: 07/12/2017
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`INDEX NO. 50517/2015
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`FILED: WESTCHESTER COUNTY CLERK 07m2017 09:42 ‘
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`NYSCEF DOC. NO. 106
`RfiCfiIVfiD NYSCEF: 07/12/2017
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`.FILED: WESTCHESTER COUNTY CLERK 0720722017 09:36 @ INDEX “0' 50517/2015
`NYSCEF DOC. NO. 104
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`McSwegan, 213 AD. 2d 232, 233 [15t Dept. 1995]. “'A jury's finding that a party was at
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`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 interwoven
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`as to make it logically impossible to find negligence without also finding proximate cause‘"
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`(Stewart v Marte, 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
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`the jury adopted that view" (Bonomo v City of New York. 78 AD3d 1094, 1094—95 [2d Dept
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`2010], quoting Barnett v Schwartz. 47 AD3d 197, 205 [2007] [citations omitted]).
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`‘
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`In the present case, the issues of negligence and proximate cause are not so
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`inextricably inten/voven that the jury could have found Plaintiff negligent without also
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`finding that he was the proximate cause of the accident. Defendant Altobelli cites the trial
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`court decision in Yondola v. Trabulsy, which was affirmed by the Second Department, as
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`the main support for his motion for a hew 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.
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`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
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`proximate cause were so inextricably interwoven that a finding of negligence without
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`proximate cause was wholly inconsistent and contrary to the weight of the evidence.
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`in contrast, a finding that Plaintiff Glynn was negligent but not a proximate cause
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`of the accident would not be wholly inconsistent and contrary to the weight of the evidence
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`FILED: WESTCHESTER COUNTY CLERK 07/12/2017 09:42 AM
`NYSCEF DOC. NO. 106
`RECEIVED NYSCEF: 07/12/2017
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`INDEX NO. 50517/2015
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`FILED: WESTCHESTER COUNTY CLERK 071-32017 09:42 A
`NYSCEF DOC. NO. 106
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`INDEX 10- 50517/2015
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`R«C«IV«D NYSCEF: 07/12/2017
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`FILED: WESTCHES'I‘ER COUNTY CLERK 07 07 2017 09:36 ‘
`NYSCEF DOC. NO. 104
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`INDEX NO- 50517/2015
`RECEIVED NYSCEF: 07/06/2017
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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
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`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
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`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
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`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
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`view" (Moffett-Knox v Anthony's Windows on Lake, Inc., 126 AD3d 768, 768 [2d Dept
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`2015], quoting Bonomo, 126 ADBd at 1094-95).
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`Accordingly, the Court must conclude that the jury found that Plaintiff Glynn was
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`negligent for failing to stop at the sign pursuant to Vehicle and Traffic Law § 1142 and
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`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's motion for an order
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`FILED: WESTCHESTER COUNTY CLERK 07/12/2017 09:42 AM
`NYSCEF DOC. NO. 106
`RECEIVED NYSCEF: 07/12/2017
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`INDEX NO. 50517/2015
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`INDEX “(3- 50517/2015
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`FILED: WESTCHESTER COUNTY CLERK 07m2017 09:42 ‘
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`R«C«IV«D NYSCEF: 07/12/2017
`NYSCEF DOC. NO. 106
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`FILED: WESTCHESTER COUNTY CLERK 07 O7 2017 09:36 ‘
`NYSCEF Doc. NO. 104
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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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`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
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`excessive, inconsistent, and contrary to the weight of the evidence. Defendant Altobelli
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`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’s‘award 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
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`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,
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`the Court grants this branch of Plaintiffs 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
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`(Coker v Bakka/
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`Foods, Inc., 52 ADBd 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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`Key Fat Corp., 98 AD3d 650, 651[2d Dept. 2012]; see CPLR 5501[c]). There is no precise
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`14 of 21
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`FILED: WESTCHESTER COUNTY CLERK 07/12/2017 09:42 AM
`NYSCEF DOC. NO. 106
`RECEIVED NYSCEF: 07/12/2017
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`INDEX NO. 50517/2015
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`FILED: WESTCHESTER COUNTY CLERK 07m2017 09:42 .
`NYSCEF DOC. NO. 106
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`INDEX v0. 50517/2015
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`«IV«D NYSCEF: 07/12/2017
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`_____________________.fl_________________*_________________F_N
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`FILED: WESTCHESTER COUNTY CLERK 07 O7 2017 09:36 ‘
`NYSCEF DOC. NO. 104
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`INDEX NO. 50517/2015
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`RECEIVED NYSCEF: 07/06/2017
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`mathematical formula for assessing the adequacy of damages so the "reasonableness"
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`of compensation is determined by examining the relevant precedent of comparable cases
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`and making factual comparisons (Kayes, 104 AD3d at 741; see also Don/on v City of New
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`York, 284 AD2d 13. 14-15 [1st Dept. 2001]).
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`In the case before the Court, Plaintiff suffered an injury to the hand medically
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`characterized as a displaced intraarticular, commuted fracture of the thumb metacarpal
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`or a Bennett Fracture. Plaintiff undenrvent surgery to repair the fracture and insert pins
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`into his hand which were removed by a subsequent surgery.
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`In addition, Plaintiff
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`developed post traumatic arthritis; however, Plaintiff did have another form of arthritis
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`prior to the accident, for