`NYSCEF DOC. NO. 284
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`To commence the 30-day statutory time period for appeals as of right under 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
`------------~----------------------------------------------------)(
`C L C Jr. an Infant by his Mother and Natural Guardian
`SYLVIA GREEN,
`
`Plaintiff,
`
`-against-
`
`Index No. 51356/14
`Motion Seq. Nos. 008, 009
`Decision and Order
`
`WESTCHESTER MEDICAL CENTER, MICHAEL
`KESSLER MD, GEETHA RAJENDRAN MD,
`ADVANCED OB/GYN ASSOCIATES,
`
`Defendants.
`-----,-----------------------------------------------------------)(
`EVERETT,J.
`
`The following papers were read on the motions:
`Notice of Motion/Affirmation
`in Support/Exhibits A-C (docs 261- 265)
`Reply Affirmation/Exhibit 0 (docs 281-282)
`
`in Support/Exhibit A (docs 268-270)
`Notice of Motion/Affirmation
`Reply Affirmation/Exhibit A (docs 279-280)
`
`Affirmation in Opp (doc 276)
`
`In this action sounding in medical malpractice, defendant Westchester Medical Center
`
`(WMC) moves, under motion sequence number 008, for an order, pursuant
`
`to CPLR 4404 (a),
`
`granting the following relief: (I) setting aside the jury's verdict
`
`in favor of plaintiff and directing
`
`judgment
`
`in favor of WMC; or (2) setting aside the jury's verdict
`
`in favor of plaintiff and
`
`directing a new trial on all issues; (3) setting aside the jury's verdict
`
`in favor of plaintiff and
`
`directing a new trial on the issue of damages, unless plaintiff stipulates to a substantial
`
`reduction
`
`of the jury's awards; and (4) granting a hearing, pursuant
`
`to CPLR 4545, 4546 and 50-A, for the
`
`purpose ofidentirying
`
`collateral sources and structuring ajudgment;
`
`and (5) declaring that any
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`judgment entered reflect that portion of the award that provides for future medical expenses to
`
`be paid in accordance with Public Health Law ss 2999-g through 2999-j. Defendants Michael
`
`Kessler, M.D. (Kessler), Geetha Rajendran, M.D. (Rajendran) and Advanced Ob/Gyn Associates
`
`(Advanced Ob/Gyn) jointly move, under motion sequence number 009, for orders, pursuant
`,
`CPLR 4404 (a), 5031 and 5501, granting the following relief: (I) setting aside the jury's verdict
`
`to
`
`and awarding judgment
`
`to defendants as a matter oflaw, or directing a new trial on the ground
`
`that the verdict was not based on a rational view of the evidence, or was contrary to the weight of
`
`the evidelice;'or
`
`(2) setting aside the jury's verdict and directing a new trial; or (3) conditionally
`
`reducing the awards for past and future pain and suffering because they d~iate materially from
`
`what would be reasonable compensation; and (4) granting a hearing, pursuant
`
`to CPLR 4545,
`
`4546 and 50-A, for the purpose of identifying collateral sources and structuring a judgment;
`
`(5) declaring that any judgment entered reflect that portion of the award that provides for future
`medical expenses to be paid in accordance with Public Health Law SS 2999-g through 2999-j;
`
`and (6) staying the entry of judgment pending a decision on this motion and a hearing to
`,
`determine the proper calculation of the judgment under CPLR 5031. The motions, under motion
`
`sequence numbers 008 and 009, are consolidated for disposition and upon the foregoing papers,
`
`the motions are decided as set forth below.
`
`The theory of plaintiffs
`
`case is that the proximate cause of her son's preterm delivery and
`
`permanent preterm birth related injuries and deficits were Kessler and/or Rajendran's
`
`respective
`
`departures from accepted medical practice by their failures to offer a cerclage to address her
`
`cervical
`
`insufficiency during any of her three hospital visits and/or admissions
`
`in July 2010.
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`Plaintiff seeks to hold WMC vicariously liable for the negligent acts and/or omissions of the
`
`defendant physicians.
`
`The case was tried before a jury. During the course of the trial, the parties produced
`
`evidence relating to the central issues of: (I) whether Rajendran departed from accepted medical
`
`practice by failing to offer plaintiff Sylvia Green (Green) a cerclage during the July 9-10
`
`admission;
`
`(2) whether Kessler departed from accepted medical practice by failing to timely
`
`obtain a maternal fetal medicine (MFM) consult during the July 13-14 admission and during the
`
`July 15-16 admission;
`
`(3) whether such departures were the proximate cause of the preterm
`
`delivery ofplaintiffs
`
`son at 24 weeks gestation, and his related injuries and deficits; and (4)
`
`whether Green reasonably believed, based on the words or conduct of WMC, that Rajendran and
`
`Kessler were employees/agents of WMC, and accepted their services in reliance on the perceived
`•
`relationship, and not in reliance upon the skill of Raj endran and Kessler. The jury's verdict, as
`
`recorded in the extract of May 17,2018, provides in relevant part:
`
`_Rajendran departed from accepted practice by not offering Green a cerclage
`during her July 9-10, 2010 admission, and that such departure was a proximate
`cause of the infant plaintiffs
`injuries.
`
`_Kessler departed from accepted practice by failing to timely obtain a MFM
`consult during Green's July 13-14, and 15-16,2010 admissions, and that such
`departure was a proximate cause ofthe infant plaintiffs
`injuries.
`
`The jury apportioned fault to Rajendran and Kessler equally.
`
`- Green reasonably believed, based on the words or conduct of WMC, that
`Rajendran and Kessler were employees or agents ofWMC,
`and that she accepted
`their services in reliance upon the perceived relationship between these physicians
`and WMC, and not in reliance upon their skills as physicians.
`
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`The jury awarded:
`
`$5 million for past pain and suffering;
`
`$15 million for future pain and suffering for 69 years;
`
`Future lost earnings in an annual amount of$I13,OOO for 39 years commencing
`on July I, 2032;
`
`Home care (until age 21) in the annual amount of $54,000 for 13.17 years;
`
`Residential/Home
`56 years;
`
`care (starting at age 21) in the annual amount of $163,199 for
`
`Physical
`
`therapy in the annual amount of $13,1 04 for 13.17 years;
`
`Occupational
`
`therapy in the annual amount of $17,004 for 13.17 years;
`
`Speech therapy in the annual amount of $17,784 for 13.17 years.
`
`As to defendants'
`
`contentions that the verdict should be set aside because it was not based
`
`on a rational view ofthe evidence, or was contrary to the weight of the evidence,
`
`it is well settled
`
`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" (Victoria H. v
`
`Board o/Educ. a/City o/N. Y, 129 AD3d 912, 912 [2d Dept 2015] [internal quotation marks and
`
`citations omitted]). Furthermore:
`
`is not supported by
`"[f]or a court to conclude as a matter of law that ajury verdict
`sufficient evidence ...
`[it must] first conclude that there is simply no valid line of
`reasoning and permissible inferences which could possibly lead rational
`[people]
`to the conclusion reached by the jury on the basis of the evidence presented at
`trial. The criteria to be applied in making this assessment are essentially those
`required of a Trial Judge asked to direct a verdict.
`It is a basic principle of our
`law that it cannot be correctly said in any case where the right of trial by jury
`exists and the evidence presents an actual issue of fact, that the court may properly
`direct a verdict. Similarly,
`in any case in which it can be said that the evidence is
`such that it would not be utterly Irrational for a jury to reach the result
`it has
`
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`determined upon, and thus a valid question of fact does exist, the court may not
`conclude that the verdict
`is as a matter of law not supported by the evidence"
`
`(Cohen v Hallmark Cards, 45 NY2d 493,499 [1978] [internal quotation marks and citations
`
`omitted]).
`
`Having presided at the trial, and upon review of the evidence in conjunction with the
`
`instant motions,
`
`the Court finds that the jury's verdict on liability was neither against
`
`the weight
`
`of the evidence, nor was it inconsistent with a fair interpretation of the evidence.
`
`In
`
`circumstances
`
`such as this, "[w]here ... conflicting expert testimony is presented,
`
`the jury is
`
`entitled to accept one expert's opinion and reject that of another expert" (Ferreira v Wyckoff
`
`Hgts. Med. Ctr., 81 AD3d 587, 588 [2d Dept 2011]). To find, as defendants ask, that the jury's
`
`verdict was unsupported or against the weight of the evidence presented, would require the Court
`
`to find that plaintiffs
`
`experts were not worthy of belief. This Court, having heard the evidence,
`
`is not willing to make that finding (see Loughman v Flint Co., 132 AD2d 507, 510 [Is Dept
`
`1987]).
`
`As to those aspects of the consolidated motions which seek a reduction of the jury's
`
`awards on the ground that the awards for past pain and suffering ($5 million),
`
`future pain and
`
`suffering ($15 million over 69 years), lost earnings ($113,000 for 39 years) and future medical
`
`expenses (as broken down above) are excessive,
`
`the motion is resolved as follows.
`
`In New York, "[t]he amount of damages to be awarded to a plaintiff for personal
`
`injuries
`
`is a question for the jury, and its determination will not be disturbed unless the award deviates
`
`materially from what would be reasonable compensation"
`
`(Peterson v MTA, 155 AD3d 795, 798
`
`[2nd Dept 2017]), and "[t]he reasonableness of compensation must be measured against relevant
`
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`II I
`
`precedent of comparable cases" (Halsey v New York City Tr. Auth., 114 AD3d726,
`
`727 [2014]
`
`[internal quotation marks and citations omitted]).
`
`In Sence v Atoynatan (142 AD3d 600 [2d Dept 2016]), a medical malpractice case cited
`
`by both plaintiff and defendants involved a large jury verdict,
`
`including $4 million for past pain
`
`and suffering and $7,015,000 for future pain and suffering. The case centered on evidence that
`
`an infant sustained severe and permanent brain damage, with related deficits, as a result of the
`
`defendants' deviations from accepted standards of medical care. On appeal, the Appellate
`
`Division, Second Department,
`
`finding that the award for past pain and suffering deviated
`
`materially from what would be reasonable compensation, modified the entered judgment, and
`
`directed the parties to stipulate to reducing the amount to $2 million within a given period of
`
`time, and in the absence of such stipulation, remitting the matter to trial court for a new trial on
`
`damages on the question of past pain and suffering.
`
`While plaintiff cites to a series of cases which precede Sence by not less than 10 years,
`
`and prior to the creation of the New York Medical Indemnity Fund (MIF) in 201 I, defendants
`
`point to Reilly v St. Charles Hosp. & Rehabilitation Center (143 AD3d 692 [2d Dept 2016]),'
`
`another medical malpractice action involving a jury finding ofliability for the severe birth-related
`
`neurological
`
`injuries sustained by an infant plaintiff. The Reilly appeal was decided by the
`
`Appellate Division, Second Department approximately two months after Sence, albeit by a
`
`different panel.
`
`In its decision,
`
`the Appellate Court held, in relevant part, that the awards for past
`
`and future pain and suffering ($ I0 million past, and $82.5 million future, for a total of $92.5
`
`I Plaintiff cites Reilly v St. Charles Hasp. & Rehabilitation Center for the purpose of
`showing that the jury's verdict
`in this action is not out of line with the jury verdict rendered in
`another medical malpractice case involving a severe brain injury sustained at birth.
`
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`million) were excessive and deviated materially from what would be reasonable compensation.
`
`After downward modification,
`
`the awards came to $750,000 past and $3.5 million future for a
`
`total of $4,250,000. Defendants argue that, because the neurologic injuries sustained by the
`
`instant infant plaintiff are less severe than those sustained by the Reilly infant plaintiff,
`
`the
`
`damages awards must be reduced to a commensurate level.
`
`In view of the nature and extent of the injuries sustained by the infant in this action, and
`
`upon comparison to the pain and suffering awards rendered in this action to the pain and
`
`suffering awards rendered in other recent medical malpractice cases involving infants who
`
`sustained brain injury at birth, the Court finds that the awards of $5 million (past) and $15
`
`million (future) materially deviate from what would be considered reasonable compensation (see
`
`Halsey v New York City Tr. Auth.; Quijano v American Tr, Ins. Co., 155 AD3d 981, 983-984 [2d
`
`Dept 2017]).
`
`It is suggested that the parties consider stipulating to reducing the awards to $2
`
`million for past pain and suffering and $7 million for future pain and suffering, sums which
`
`would be more reasonable in light of other similar medical malpractice actions.
`
`As to the jury's award for future lost earning, defendants' motions are denied, as the
`
`evidence presented by plaintiffs
`
`expert was substantial and compelling, and defendants, who did
`
`not offer an expert to address this issue, failed to adequately refute plaintiffs
`
`evidence.
`
`The motions to set aside the balance of the jury award are also denied, as the awards,
`
`to the
`
`extent they are not reduced by virtue of the MIF,' which provides funds for future health care
`
`, Assuming plaintiff qualifies for the MIF, to the extent his future medical expenses are
`paid out of the MIF, rather than by the defendants,
`their payout will be reduced.
`
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`costs associated with birth-related neurological
`
`injuries resulting from medical malpractice, are
`
`supported by the evidence.
`
`Regarding the jury's finding against WMC on the question of vicarious liability,
`
`it is well
`
`settled that a medical facility, such as WMC, may be held liable, under the theory of vicarious
`
`liability, for the negligent acts or omissions of its employees, but not those of independent
`
`contractors/physicians who are not in its employ.
`
`It is also well settled that a hospital or medical
`
`facility (a principal) can, under the theory of apparent agency, and under certain circumstances,
`
`be held liable for the negligent acts or omissions of independent contractors/physicians who are
`
`not in its employ (see Hill v St. Clare's Hosp., 67 NY2d 72,79-81 [1986]).
`
`"Essential
`
`to the creation of apparent authority are words or conduct of the principal,
`
`communicated to a third party, that give rise to the appearance and belief that the agent possesses
`
`authority" to act on behalf of the principal
`
`(Hallock v State of New York, 64 NY2d 224, 231
`
`[1984]; see Merrell-Benco Agency, LLC v HSBC Bank USA, 20 AD3d 605, 608 [2005], Iv
`
`dismissed and denied 6 NY3d 742 [2005]). A plaintiff seeking to hold a medical facility
`
`vicariously liable for the acts of omissions of a physician not in its employ must show that he or
`
`she reasonably relied on the appearance of authority based on "some misleading conduct on the
`
`part of the principal-not
`
`the agent" (Ford v Unity Hosp., 32 NY2d 464, 473 [1973]; see
`
`Merrell-Benco Agency, LLC v HSBC Bank USA, supra), and that he or she accepted the services
`
`of the ostensible agent in reliance, not upon that person's skill, but based on his or her
`
`relationship with the principal
`
`(see Hill v St. Clare's Hosp., 67 NY2d at 82; Nagengast v
`
`Samaritan Hosp., 211 AD2d 878, 880 [1995]).
`
`Under the leading case of Mduba v Benedictine Hosp. (52 AD2d 450 [3d Dept 1976]), the
`
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`appellate court addressed the question of vicarious liability, and citing the Restatement of Torts,\
`
`determined that, because the defendant hospital held itself out to the public as a facility that
`
`furnishes doctors, staff and facilities for emergency treatment,
`
`it was:
`
`"under a duty to perform those services and is liable for the negligent performance
`of those services by the doctors and staff it hired and furnished to [the plaintiff!.
`Certainly,
`the person who avails himself of hospital facilities has a right to expect
`satisfactory treatment
`from any personnel who are furnished by the hospital"
`
`(id. at 454).
`
`\
`Upon a review of the evidence,
`
`the Court finds no cause to vacate the jury v~rdict
`
`ascribing vicarious liability to WMC for the actions of Kessler and Rajendran. The evidence
`
`presented to the jury was that Green presented to nonparty ob/gyn Dr. Helen Hostin (Dr. Hostin)
`
`.
`
`on July I, 20 I0, with complaints of right lower quadrant pain. Dr. Hostin referred Green to a
`
`maternal fetal medicine (MFM) specialist for an ultrasound and evaluation, and based on these
`
`results together with her own examination of Green several days later on July 6, 20 I0, Dr. Hostin
`
`admitted her to Nyack Hospital. Green was treated at Nyack Hospital until July 9, 2010, when
`
`Dr. Hostin transferred her, by ambulance,
`
`to WMC, because it was better equipped to treat
`
`Green's symptoms and a significantly premature infant.
`,
`.
`
`Upon her arrival at WMC, Green was seen by Rajendran, ah MFM specialist. On the
`
`evening of July 10, 2010, Green, who was not offered a cerclage by Rajendran, was subsequently
`
`discharged by Kessler (who did not actually see or examine her), and a staff nurse gave her an
`
`3 "One who employs an independent contractor to perform services for another which are
`accepted in the reasonable belief that the services are being rendered by the employer or by his
`servants,
`is subject to liability for physical harm caused by the negligence of the contractor
`in
`supplying such services,
`to the same extent as though the employer were supplying them himself
`or by his servants" (Restatement, Torts 2d, S 429).
`
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`appointment
`
`to see Rajendran approximately one week later. On the evening of July 13, Green,
`
`who was experiencing certain symptoms (some spotting/bleeding) went to WMC. She was
`
`discharged several hours later (at approximately 3:30 a.m., on July 14, 2010) by Kessler, who
`
`was 'on call, but who did not actually see or examine her. On the evening of July 15,2010,
`
`Green presented to WMC's emergency room complaining of contracti<;ms and vaginal spotting.
`
`Kessler, who was again on call, examined her, and admitted her to labor and delivery. Rajendran
`
`saw Green at approximately 9:00 a.m., the next morning, and spoke with her about the
`
`circumstances
`
`surrounding her preterm labor. The infant plaintiff, who was born at
`
`approximately 10:40 a.m., was delivered by Kessler.
`
`WMC argues that, be'cause the treatment Green received from Rajendran and from
`
`Kessler was initiated by her private physician, Dr. Hostin, who had advised Green that she (Dr.
`
`Hostin) was going to contact her "colleagues" at WMC, the logical conclusion is that Green's
`
`private physician was referring her to private attending physicians at WMC. WMC also points to
`
`the fact that Green was given a follow-up appointment with Rajendran at Rajendran's off-
`
`premises office as further evidence that ,Green should have been aware that Rajendtan was not on
`
`WMC's staff of employees. Finally, WMC argues that the inclusion of WMC's name on the
`
`letterhead of forms provided to Green to fill out with respect to the different medical services
`
`being provided to her, is inadequate to establish that either Kessler or Rajendran was acting on its
`
`behalf, sufficient
`
`to confer an agency relationship.
`
`Although neither Rajendran nor Kessler were actually employed by WMC, the jury made
`
`a determination that the circumstances
`
`surrounding Green's care and treatment at WMC were
`
`sufficient
`
`to find that she could have reasonably believed that these physicians were employees or
`
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`agents of WMC. Supporting the view that Green reasonably believed that, when she received
`
`treatment from Rajendran and Kessler,she was being treated by WMC employees,
`
`is Rajendran's
`
`trial testimony that: (J) when a patient comes to the hospital and needs a consult by an MFM,
`
`the MFMwho attends that patient
`
`is the MFM on duty at that particular
`
`time (tr at 305);
`
`(2) she (Rajendran) was an employee of WMC (tr at 109), which she changed several days
`
`later during cross examination;
`
`(3) she was uncertain whether Advanced Ob/Gyn was run by
`
`employees ofWMC (tr at 306); and (4) It was her understanding that Advanced Ob/Gyn was the
`
`faculty practice for WMC, and the teaching faculty for the hospital (tr at 305). Kessler was also
`
`unable to state with certainty the nature of his relationship with WMC, testifYing that Advanced
`
`Ob/Gyn was "a group created just to be, Iguess; a subgroup of the hospital," when he was asked
`
`whether he was aware in 2010, of the exact affiliation between the group and WMC (tr at 138).
`
`Moreover, Dr. Blanchette, whose pretrial deposition testimony was, in part, read into the record
`
`during trial, provided evidence about the close nature of the relationship between WMC and the
`
`individual defendants when he acknowledged that he was, si~ultaneously,
`
`the director of
`
`Ob/Gyn at WMC and the director of Advanced Ob/Gyn (tr at 1052).
`
`,
`
`,
`
`.
`
`In rendering its verdict, the jury might have also considered the facts that: (J) Green was
`
`brought to WMC bY,ambulance from Nyack Hospital; (2) Green was sent to WMC for the
`
`specialized prenatal services it could provide, and not for treatment by ally particular physician,
`
`regardless of whether Dr. Hostin told her that she was going to contact her "colleagues" at
`
`WMC; (3) when-asked what her understanding was as to,where the doctors who treated her were
`
`working, Green stated that she believed them to ,be working for WMC, because that was where
`
`she was being cared for; (4) Green was treated at WMC by physicians assigned to her on the
`
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`basis of their scheduled shifts/on call status at WMC, and not because she chose either of them,
`
`had a prior relationship with either of them, or was a private patient of either of them; (5) prior to
`
`the evening of July 15, 20 10, Green had never met Kessler,
`
`the physician who discharged her
`
`twice without ever speaking with her or examining her; (6) it was WMC staff, and not Green,
`
`that set up the appointment
`
`for her to see Rajendran off-premises (an appointment
`
`she never kept
`
`because she delivered her son days before the scheduled appointment);
`
`(7) the consent forms
`
`displaying the WMC letterhead, which were given to Green by WMC staff, state that Green was
`
`authorizing Rajendran and Kessler and "associates or assistants of his/her [the physician's]
`
`choice at Westchester Medical Center ('WMC')
`
`to perform" certain procedures on her, without
`
`any explanation regarding the relationship between the facility, the treaters and the medical
`
`services being authorized and provided; and (8) neither Kessler, nor Rajendran, nor WMC
`
`offered proof that they made any effort to dispel any (mis)understanding Green might have had as
`
`to the nature of their professional
`
`relationship. Based on the evidence before the jury, the Court
`
`cannot find that the jury's finding of vicarious liability is against the weight of the evidence.
`
`As to that aspect of defendants' motion that seeks a mistrial on the grounds of plaintiff
`
`counsel's
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`summation,
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`the motion is denied. To the extent the defense's objections were
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`overruled on the ground that plaintiff counsel's
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`statements constituted fair comment on the
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`evidence, which did notexceed the wide bounds oflatitude
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`afforded to attorneys during
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`summation,
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`the Court stands by those rulings.
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`Granted, however, are those aspects of defendants' motions that seek: (I) a hearing,
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`pursuant
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`to CPLR 4545, 4546 and Article 50-A, for the purpose of identifying collateral sources
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`and structuring a judgment;
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`(2) an order decl~ring that any judgment entered reflect that portion
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`INDEX NO. 51356/2014
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`of the award that provides for future medical expenses shall be paid in accordance with Public
`Health Law SS 2999-g through 2999-j.
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`Accordingly,
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`it is
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`ORDERED that defendants' motions are granted to the extent that:
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`(I) unless the parties file a written stipulation consenting to a specific reduction of the
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`amount of damages for past and future pain and suffering within 30 days of entry of this decision
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`and order, a new trial is ordered on the question of damages;
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`(2) a hearing shall be conducted for the purpose of identifying collateral sources and
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`structuring a judgment; and
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`(3) with respect to any judgment entered in this action, the portion of the award that
`provides for future medical expenses must be paid in accordance with Public Health Law SS
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`2999~g through 2999-j; and the motions are otherwise denied; and it is further
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`ORDERED that the parties are directed to appear in the Settlement Conference Part on
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`Tuesday, June 4, 2019 at 9:15 a.m., to schedule a date for a new trial on damages and a date for a
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`colla!eralsource
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`hearing.
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`This constitutes the decision and order of ihe Court.
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`Dated: White Plains, New York
`April 5, 2019
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`ENTER:,1~QL'
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`HON. DAVID F. EVERETT,
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`J.S.C.
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`Filed Electronically
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`NYSCEF DOC. NO. 284
`RECEIVED NYSCEF: 04/08/2019
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`INDEX NO. 51356/2014
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`The Fitzgerald Law Finn, P.C.
`Martin Clearwater and Bel!
`\
`Mauro Lilling Naparty
`Heidel!, Pittoni, Murphy & Bach
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`)
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`/
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