FILED: WESTCHESTER COUNTY CLERK 09/26/2017 03:43 PM
`NYSCEF DOC. NO. 66
`RECEIVED NYSCEF: 09/26/2017
`
`INDEX NO. 52508/2014
`
`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
`BARBARA MURPHY ,
`
`Plaintiff,
`
`-against-
`
`CRAIG FORD
`
`DECISION & ORDER
`Index No: 52508/2014
`Seq # 2
`
`Defendant.
`-----------------------------------------x
`The following papers were read on the plaintiff's motion to vacate the jury verdict
`
`pursuant
`
`to CPLR 4404:
`
`Notice of Motion/Affirmation in Support/Exhibits A-K
`Transcript of Proceedings
`.
`Affirmation in Opposition/Exhibits A-F
`Memorandum of Law in Opposition
`Reply Affirmation/Exhibits
`L-N
`
`FACTUAL AND PROCEDURAL BACKGROUND
`
`1-13
`14
`15-21
`22
`23-26
`
`The plaintiff, Barbara Murphy (the "plaintiff"I"Murphy")
`
`commenced this action to
`
`recover damages arising from a motor vehicle accident, which occurred on January 24,
`
`2014 with Defendant, Craig Ford (the "defendant"I"Ford") and resulting in her sustaining
`..•.
`the case came on before this Court
`
`personal
`
`injuries. On March 9, 2017,
`
`for a trial on
`
`damages1 and on March 20, 2017,
`
`the jury rendered a verdict awarding the plaintiff
`
`$250,000 for her past pain and suffering and $111,500 for one year of future pain and
`
`1 The parties agreed on the record, prior to the commencement
`liable.
`
`of the trial on damages,
`•
`
`that Ford was
`
`1 of 5
`
`

`

`FILED: WESTCHESTER COUNTY CLERK 09/26/2017 03:43 PM
`NYSCEF DOC. NO. 66
`RECEIVED NYSCEF: 09/26/2017
`
`INDEX NO. 52508/2014
`
`suffering.
`
`The plaintiff now files the instant motion pursuant
`
`toCPLR
`
`4404 seeking to set
`
`aside the damages verdict and order a new trial or in the alternative for an order fixing
`
`damages
`
`in a monetary amount which does not deviate materially
`
`from what
`
`is
`
`considered reasonable compensation for the plaintiff's injuries. The plaintiff argues that
`
`the award for past pain and suffering and future pain and suffering deviated materially
`
`from reasonable compensation
`
`and was profoundly inadequate,
`
`since there was no
`
`testimony or evidence disputing the contention that Murphy's injuries were serious and
`
`severe.
`
`In support of her motion, the plaintiff relies upon, among other things, photographs
`
`of her vehicle,
`
`trial exhibits, a transcript of the proceedings and an attorney's affirmation.
`
`The defendant opposes the motion and in support of his opposition,
`
`relies upon, among
`
`other
`
`things,
`
`the transcript of
`
`the trial and Murphy's testimony, portions of Murphy's
`
`examination before trial
`
`("EBT"), MRI
`
`reports and other medical note and pharmacy
`
`records, a memorandum of law and an attorney's affirmation.
`
`The plaintiff, by her attorney, argues that prior to the trial, both parties agreed that
`
`the total damages would be capped at $1,250,000,
`
`the reported limits of the defendant's
`
`.insurance policy. The plaintiff contends that the defendant's attorney conceded that she
`
`would have permanent
`
`loss of range of motion and her expert stated that her pain is
`
`permanent and will worsen. The plaintiff asserts that all agreed that her employment was
`
`substantially curtailed. The plaintiff contends that the meager award of $250,000 for the
`
`catastrophic injuries and unremitting pain she suffered for more than three years was
`
`wholly insufficient. She further argues that the $111,5000 for one year and only one year,
`
`2 of 5
`
`

`

`FILED: WESTCHESTER COUNTY CLERK 09/26/2017 03:43 PM
`NYSCEF DOC. NO. 66
`RECEIVED NYSCEF: 09/26/2017
`
`INDEX NO. 52508/2014
`
`for future pain and suffering may be adequate for one year, but the jury determination that
`
`she would have no more pain and suffering from her permanent
`
`injury for the rest of her
`
`life is incomprehensible,
`
`is totally unsupported by the evidence and without any basis in
`
`fact or reason.
`
`Inopposition,
`
`the defendant argues that the amount of damages is a question of
`
`fact for the jury, that comparable cases demonstrate that the jury's award is reasonable.
`
`In reply, the plaintiff refutes the defendant's contentions made in his opposition.
`
`DISCUSSION
`
`CPLR 4404(a) states,
`
`in relevant part, that:
`
`After 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.
`
`"The amount of damages to be awarded for personal
`
`injuries is primarily a question
`
`of fact for the Lury" (see Kihl v Pfeffer, 47 AD 3d 154, 160 [2d Dept 2007]).
`
`'Only when an
`
`award "deviates materially from what would be reasonable compensation"
`
`is a new trial
`
`on damages granted'
`
`(Id.). Tne 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]).
`
`In other words, "[a] verdict should
`
`be set aside as against
`
`the weight of the evidence Only where it seems palpably wrong .
`.
`.
`and it can be plainly seen that the preponderance is so great that the jury could not have
`
`reached their conclusion upon any fair interpretation of the evidence"
`
`(Cornier v Spagna,
`
`3 of 5
`
`

`

`FILED: WESTCHESTER COUNTY CLERK 09/26/2017 03:43 PM
`NYSCEF DOC. NO. 66
`RECEIVED NYSCEF: 09/26/2017
`
`INDEX NO. 52508/2014
`
`101 AD2d .141, 149 [1st Dept1984] citing Kimberly-'-Clark Corp. v Power Auth., 35 AD2d
`
`330, 335 [4th Dept 1970]).There is no precise mathematical
`
`formula for assessing the
`
`adequacy of damages
`
`so the "reasonableness"
`
`of compensation
`
`is determined
`
`by
`
`examining the relevant precedent of comparable cases and making factual comparisons
`
`(Kayes, 104 AD 3d at 741; see also Donlon v City of New York, 284 AD2d 13, 14-15 [1st
`
`Dept. 2001]).
`
`Upon reviewing the facts and applicable case law it is clear that the defendant has
`
`not met the burden required for this Court to set aside the jury verdict. The plaintiff was
`. .'
`,
`injured in the car accident on January 24, 2014 and was hospitalized until February 4,
`
`2014 and then transferred to a rehabilitation center until February 19, 2014. The plaintiff
`
`asserts that she sustained a burst fracture of the first lumbar vertebra with retropulsion of
`
`fracture fragments
`
`into. spinal canal, displaced fracture of second cervical vertebra,
`
`fracture of the twelfth thoracic vertebra, and a right vertebral artery dissection. She had
`
`to undergo spinal surgery to fuse her vertebra and discs, with the insertion of rods and
`
`screws and bone grafting. The plaintiff also contends that she has continuing pain
`
`requiring pain medication,
`
`that her health and quality of life have declined,
`
`that she has
`
`been declared 100% disabled and only works a maximum of 20 hours a week.
`
`However,
`
`there was also testimony that Murphy began working and driving four
`
`months subsequent
`
`to the accident and has traveled to ,various places since the accident.
`
`Further,
`
`the documentation
`
`shows that
`
`the non-displaced fracture of the T12 spinous
`
`process has healed and two months after the accident,
`
`the x-rays showed no sign of the
`
`slightly displaced C2 fracture. The defendant also had an expert, who testified as to the
`
`, plaintiff's 'injuries and effect of those injuries on the plaintiff and the jury is entitled to
`
`4 of 5
`
`

`

`FILED: WESTCHESTER COUNTY CLERK 09/26/2017 03:43 PM
`NYSCEF DOC. NO. 66
`RECEIVED NYSCEF: 09/26/2017
`
`INDEX NO. 52508/2014
`
`believe that expert's testimony.
`
`Further, the plaintiff had a prior injury in 2003 and was still suffering with symptoms
`
`from that
`
`injury at the time of the 2014 motor vehicle accident.
`
`In October 2013, prior to
`
`the accident, she complained of neck and back pain to her physician and had to be
`
`prescribed with 240 pain pills, but then that same physician claimed that at the time of the
`
`accident
`
`in February 2014, Murphy did not have a significant ongoing neck and back
`
`problem prior to the accident. The plaintiff also failed to call that physician as a witness at
`
`the trial. Additionally,
`
`there were various discrepancies with the plaintiff's testimony and
`
`the evidence presented.
`
`Juries are imbued with the power
`
`to review the facts as
`
`presented in the case. A jury may then render a verdict
`
`for the amount
`
`that should be
`
`awarded. Based on this inference the rationale behind the jury's verdict
`
`is reasonable
`
`(see, Liounis v New York City Transit Authority, 938 NYS2d 176 [2d Dept 2012];
`
`Handwerker v Dominick L. Cervi, Inc., 869 NYS2d 201 [2d Dept 2008]).
`
`The plaintiff has failed to convince this Court that the jury's verdict was against the
`
`weight of the evidence and that
`
`the verdict could not have been reached by any fair
`
`interpretation of the evidence and should be set aside. Therefore,
`
`the plaintiff's motion to
`
`set aside the jury's verdict pursuant
`
`to CPLR 4404,
`
`is hereby DENIED.
`
`The foregoing constitutes the Opinion, Decision and Order of the Court.
`
`Dated: White Plains, New York
`September Z~ 2017
`
`.
`
`5 of 5
`
`