FILED: WESTCHESTER COUNTY CLERK 07/20/2018 09:43 AM
`NYSCEF DOC. NO. 76
`RECEIVED NYSCEF: 07/19/2018
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`INDEX NO. 50551/2013
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`To commence the statutory time for appeals as of right
`(CPLR 55l3[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
`---------------------------------------------------------------------)(
`ANTHONY DALLI,
`
`Plaintiff,
`
`-against-
`
`DECISION and ORDER
`Motion Sequence NO.2
`Index No. 50551/2013
`
`WESTCHESTER COUNTY DEPARTMENT OF
`TRANSPORTATION and ANTHONY MASSARO, JR.,
`
`Defendants.
`---------------------------------------------------------------------)(
`RUDERMAN, 1.
`
`The following papers were considered in connection with defendants' post-trial motion
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`pursuant
`
`to CPLR 4404(a) for an order setting aside the jury verdict as to liability and damages,
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`and granting judgment
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`for defendant, or directing a new trial, or reducing the jury's damages.
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`award as e)(cessive and contrary to the weight of the evidence, or, in the alternative, setting this
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`matter down for a collateral source hearing and related relief:
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`Numbered
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`123
`
`Papers
`Order to Show Cause, Affirmation, E)(hibits A - S
`Affirmation in Opposition, Supplemental Affirmation in Oppositionl
`Reply Affirmation
`
`This action arose out of an accident that occurred on August 16, 2011 in which plaintiff
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`was struck by a Liberty L.ines bus driven by defendant Anthony Massaro, Jr. It was plaintiffs
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`position that at the time of the accident, while he ~as working within a cordoned-off work area
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`"Supplemental Affirmation in Opposition," while submitted in violation of the
`J Plaintiffs
`agreed-on schedule and standard procedures, will be accepted' and considered by this Court in the
`absence of any perceptible prejudice to defendants.
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`.
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`/
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`on Jerome Avenue near 208th Street in the Bronx, a portion of defendants' bus entered the work
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`area and struck him, knocking him down and causing injuries. Defendants took the position that
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`Massaro was not negligent, and that the accident was caused when plaintiff unknowingly backed
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`. into the street outside the cordoned-off area, where he was struck by the bus. The jury found that
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`Massaro was negligent and that defendants were 90% liable, while plaintiff was 10% liable.
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`In the damages portion of the trial, plaintiff presented his own testimony and that of his
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`treating physician, Dr. David Zelefsky,
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`in support of his claim that he suffered chronic shoulder,
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`back and neck injuries as a result of the accident. He also described that on December 14, 2014
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`he experienced an exacerbation of his original back injury, such that he became unable to
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`continue working as he had up to that date. Defendants presented as witnesses orthopedist Dr.
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`John Buckner and neurologist Dr. Adam Bender who testified as to their opinions that the
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`accident had not caused plaintiff any significant physical
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`injuries.
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`The jury award in plaintiffs
`
`favor was as follows:
`
`past medical expenses
`past lost earnings
`. past pain and suffering
`future lost earnings
`future pain and suffering
`TOTAL
`
`65,500.00
`$
`$ 207,500.00
`$ .213,000.00
`$ 960,000.00 (for 16 years)
`$ 634,800.00 (for 34 years)
`$2,080,800.002
`
`Defendants now move to set aside the verdicts.
`
`they state that
`2Defendants' moving papers have incorrectly reported':the verdict amounts:
`the award for plaintiffs past medical expenses was $65,000 rather than $65,500,
`that the future
`pain and suffering award was $634,500 rather than $634,800,:'and that the total is $2,079,500
`rather than $2,080,800.
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`FILED: WESTCHESTER COUNTY CLERK 07/20/2018 09:43 AM
`NYSCEF DOC. NO. 76
`RECEIVED NYSCEF: 07/19/2018
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`INDEX NO. 50551/2013
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`The Liability Verdict
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`Discussion
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`Turning first to the liability verdict,
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`it was not against the weight of the evidence.
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`is contrary to the weight of the evidence when the
`"A jury verdict
`evidence so preponderates
`in favor of the movant that the verdict cO\lld not have
`been reached on any fair interpretation of the evidence. Whether a jury verdict
`should be set aside as contrary to the weight of the evidence does not involve a
`question of law, but rather requires a discretionary balancing of many factors.
`We accord deference to the credibility determinations of the factfinders, who had
`the opportunity to see and hear the witnesses"
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`(Peterson v MTA, 155 AD3d 795, 798 [2d Dept 2017]).
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`Plaintiff and two of his co-workers, John Delligatti and Jesus Garcia testified that
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`defendants' bus s~erved into the area in which plaintiff was working, which area was marked by
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`traffic cones, and struck plaintiff within that area. Another eyewitness, Bart Xhackli,
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`testified on
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`defendants' case that it was plaintiff who backed into the bus's path while it was within the
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`roadway. While defendants challenged the credibility of plaintiff's witnesses and emphasized
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`the reliability of the neutral eyewitness in support of their argument
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`that plaintiff was actually
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`outside the marked-off area when the bus struck him, "[i]ssues of credibility are for the jury,
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`which had the opportunity to observe the witnesses and the evidence[,]
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`[and] [i]ts resolution is
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`entitled to deference" (Cieola v County of Suffolk, 120 AD3d i379, 1382 [2d Dept 2014]),
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`quoting Lalla v Connolly, 17 AD3d 322, 323 [2d Dept 2005]). Defendants'
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`arguments do not
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`justify a rejection by this Court of the testimony of plaintiff and his co-workers as a matter of
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`law; nor may it be said that the liability verdict could not have been reached on any fair
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`interpretation of the evidence.
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`There, is no merit to defendants' other arguments challenging the liability verdict.
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`Damages Verdict
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`The verdict in favor of plaintiff on damages was supported by plaintiff's
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`testimony and
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`that of his treating physicial), Dr. David Zelefsky. Plaintiffte~tified
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`regarding his injuries, the
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`treatments he underwent and the pain he experienced; Zelefsky introduced and explained
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`medical records regarding plaintiff's
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`testing, diagnosis and trefltment.
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`Several of defepdants' challenges to the damages verdict are related to plaintiff's claim
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`that his original
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`injuries caused by the subject accident were exacerbated or aggravated while he
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`was working on December 14, 2014, after which he became upable to work at all. .Defendants
`,i.
`maintain that this was actually a new injury caused by a subse~uent accident, for which plaintiff
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`I
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`is not entitled to any damages here.
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`Defendants contend that plaintiff should have been precluded from making a claim at
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`trial for an award of damages for the period after the December 14, 2014 incident, relying. on the
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`decision and order issued in this case on October 24, 2017 (JofUl Lefkowitz, J.), denying
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`plaintiff's motion to strike the note <?fissue in orderto permiti'additional discovery. However,
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`that decision and order explained that plaintiff had failed to eS'tablish that unusual or
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`unanticipated circumstances had arisen since the note of issue'!wa~ filed, j~sti:fying a need for.
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`, further discovery. Nothing in the language of that order precladed plaintiff
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`from claiming that
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`his injury was exacerbated or aggravated on December 14,2014, or from seeking damages for
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`pain and suffering and lost earnings, for the period after December 14, 2014.
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`Defendants also rely on a determination of the Social ~ecurity Administration dated
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`;,'
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`December 5, 2017, which determination was not received in evidence,
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`in which the agency
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`found that plaintiff has been disabled, for purposes of the Social Security Act sections 216(i) and
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`223(d), since December 12,20143
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`• That determination specifically acknowledged that plaintiff
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`was initially injured inApril 2011 when he was struck by a vehicle in the course of his
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`employment, but had been able to return to workbefore being:jreinjured on December 12, 2014.
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`It does not find that the December 12,2014 injury isa new ~nj;irryresulting from a separate
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`accident, rather than an aggravation ofthe original injuries. Eyen if the agency had so found,
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`plaintiff would not be precluded from claiming darnagesfor
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`the period after December 12,2014
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`based on the application of the doctrine of collateral estoppel, 'isince defendant has failed to
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`establish that the issue decided in the agency proceeding was identical
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`to that presented in the
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`personal
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`injury action (see Auqui v Seven Thirty One Ltd. Partnership, 22 NY3d 246,255
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`[2013]).
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`Defendants next contend that Dr. ZelefskY was i!UproBerly allowed to testify without
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`MRl films in evidence: This contention is built on a false premise. Review of the trial transcript
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`'.
`
`.
`
`d
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`confirms that the MRl films were admitted in evidence (see Defendants' Exhibit B, Trial
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`Transcript at 175). It is worth noting that defendants' medical experts also testified with respect
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`to the MRls. Accordingly, Wagman v Bradshaw{292 AD2d 84,87 [2d Qept 2002]), upon
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`which defendants rely, does not require setting aside the verdibt here: The Court there ordered a
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`new trial on the issue of damages because "[tJhe plaintiffwasii'"
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`allowed to place in evidence, by
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`way of the treating chiropractor, a subjective interpretation Of!![unproduced]MRl
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`films, from an
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`inadmissible report written by a nontestifying healthcare professi~nal" (id. at86).
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`While defendantschallengedZelefsky's
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`expertise,
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`.
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`the ,doctor was properly permitted to
`~
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`3 The SSA determination refers to the reinjury date as December 12,2014, while plaintiff
`testified that it occurred on December 14,2014 .. However,
`thb Court concludes that the minor
`discrepancy is immaterial.
`"
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`testify, and the jury was entitled to credit his opinions as it saw fit.
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`With regard to plaintiffs
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`lost earnings award, defendants protest that the evidence was
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`insufficient
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`to establish those claims in the absence of an expert economist. However,
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`defendants acknowledge that a plaintiffs burden of proving past and future lost earnings may be
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`(see Karwacki v Astoria Med.
`accomplished with evidence such as tax returns andW-2s
`Anesthesia Assoc., P.c., 23 AD3d 438 [2d Dept 2005]). Plaintiffs
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`showing on that issue was
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`supported by his W-2s and tax records, submitted in evidence, and histestimony
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`regarding
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`missed months of work after the subject accident. Defendants have not provided authority for
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`their suggestion that it is necessary to provide the testimony of an economist. Nor is there a lack
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`of evidence linking his injuries to his inability to work.
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`To be entitled to an award of damages for past medical expenses, a plaintiff must submit
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`medical bills; in the absence of such proof, an award of damages for past medical expenses is
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`unsupported by competent evidence (see O'Connor v Rosenblatt, 276 AD2d 610,611 [2d Dept
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`2000]). The evidence of plaintiffs past medical expenses consisted solely of his testimony that
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`he received medical bills for his treatment as a result of this accident,
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`totaling $66,000.
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`Accordingly,
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`the claim was unsupported by competent evidence, and that aspect of the jury
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`verdict must be vacated.
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`Finally, defendants contend that the verdict for past pain and suffering of$213,000
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`and
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`future pain and suffering of $634,800 for 34 years is excessive.
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`This Court is n,ot convinced that plaintiffs
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`injuries are comparable to the cases cited by
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`defendants, such as the minimally displaced clavicle fracture and nondisplaced hip fracture in
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`Perone v City o/New York (86 AD3d 600 [2d Dept 2011]), where an award of$115,000
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`for
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`future pain and suffering was reduced to $30,000. Nor is this matter comparable to Nichols v
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`FILED: WESTCHESTER COUNTY CLERK 07/20/2018 09:43 AM
`NYSCEF DOC. NO. 76
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`C&F Trading Co. (107 AD3d 769 [2d Dept 2013]), which upheld an award of$100,000
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`for
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`future pain and suffering relating to a shoulder injury.
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`In'McEachin v City a/New York (137
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`AD3d 753, 754 [2d Dept 2016]), the plaintiff was diagnosed with low back pain secondary to
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`low lumbar post-traumatic pathology and lower radiculopathy, and an implanted spinal cord
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`stimulator reduced but did not eliminate the pain, the Court reduced 'the past pain and suffering
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`award from $600,000 to $400,000, and the future pain and suffering award from $500,000 to
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`$350,000 ..
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`Of greater relevance is Peterson v MTA (155 AD3d 795,798 [2d Dept 2017]), where the
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`Court upheld an award of past pain and suffering of $800,000 and reduced the award for future
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`pain and suffering from $1,500,000 to $800,000, where the plaintiff sustained injuries to both of
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`her shoulders and her lower back; and continued to experience intense pain and did not regain
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`full range of motion in either shoulder, ev~n after surgery and physical
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`therapy ..
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`Here, plaintiff sustained injuries to his shoulders and discs in his lumbar and cervical
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`spine, which, despite treatment and medication, continue to cause him pain and to limit his range
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`of motion, and prevent him from engaging in the normal activities of his pre-accident
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`life, such
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`as working on his house, hiking, and fishing.
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`In is apparent from the jury's notes, and from almost two full days it took to reach its
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`verdict on damages,
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`th,at the jury took particular care with its calculation of each aspect of its
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`award .. When it began its deliberations midday on December 18, 2017 it first asked for all the
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`exhibits,
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`then for plaintiff s employment -records. The next morning it asked for a calculator.
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`It
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`asked for a read-back of certain testimony,
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`including plaintiffs
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`testimony regarding the hours he
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`worked. Given plaintiffs
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`evidence regarding his injuries, and his testimony regarding the pain
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`they caused, the awards of$213,000 for past pain and suffering and $634,800 for future pain and
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`FILED: WESTCHESTER COUNTY CLERK 07/20/2018 09:43 AM
`NYSCEF DOC. NO. 76
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`suffering appear to be commensurate with the level of pain plaintiff subj ecti vely. experienced
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`initially, the length of time he will have to endure it, and the possibility of its tapering off over
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`time.
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`It is not excessive.
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`The Collateral Source Issue
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`With regard to defendants' claim that they are entitled to discovery on the issue of
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`collateral sources of recovery for plaintiff s economic losses, followed by a hearing on the issue,
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`plaintiff s only response is that defendants should not have included that request for relief within
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`the present motion. No oppositiori on the merits is offered. Accordingly, since the relief appears
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`to be appropriate (see Firmes v Chase Manhattan Automotive Finance Corp., 50 ~D3d 18 [2d
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`Dept 2008]), defendants' motion is granted to that extent. Defendants shall serve on plaintiff a
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`demand for the discovery to which they are entitled, and following plaintiff s compliance
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`therewith, a hearing will be held before this Court on September 14,2018 at 9:30 a.m. to
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`determine the amount,
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`if any, by which the damages verdict should be reduced.
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`Based upon the foregoing,
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`it is hereby,
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`ORDERED that defendants' motion to set aside the verdict
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`is granted to the extent that
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`the jury's award for past medical expenses is vacated, and is otherwise denied; and it is further
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`ORDERED that the branch of defendants' motion seeking a collateral source hearing is
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`granted, and the parties are directed to appear before this Court on September 14,2018 at 9:30
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`a.m. for a hearing to determine the amount,
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`if any, by which the damages verdict should be'
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`reduced.
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`This constitutes the Decision and Order of the Court .
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`Dated: White Plains, New Yark
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`July -l!I-, 2018
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`.HON. T
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`JANiUDERMAN>J:S:c:
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`.~.•
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