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FILED: WESTCHESTER COUNTY CLERK 01/03/2018 10:52 AM
`NYSCEF DOC. NO. 53
`RECEIVED NYSCEF: 01/02/2018
`
`INDEX NO. 58545/2015
`
`the statutory time
`To commence
`period 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. WILLIAM J. GIACOMO, J.S.C.
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`X
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`MARTHA FLORES,
`
`Plaintiff,
`
`- against-
`
`ST. JOHN'S RIVERSIDE HOSPITAL,
`Defendant.
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`Index No. 58545/2015
`
`POST TRIAL
`DECISION & ORDER
`
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`x
`
`the defendant moves,
`In an action to recover damages for medical malpractice,
`pursuant
`to CPLR 4404, 5031, and 5501,
`to set aside the jury verdict on the issue of
`liability and for judgment as a matter of law or,
`in the alternative,
`to set aside the jury
`verdict on the issue of liability as contrary to the weight of the evidence and for a new trial,
`or in the alternative,
`to set aside so much of the verdict as awarded damages for past and
`future pain and suffering; and the plaintiff cross-moves, pursuant
`to CPLR 4404,
`to set
`aside so much of the jury verdict as awarded damages for future pain and suffering or
`ordering a new trial:
`Papers Considered
`
`1. Notice of Motion/Affirmation of Daniel S. Ratner, Esq.lExhibits A-C;
`2. Notice of Cross Motion/Affirmation of Thomas P. Giuffra, Esq.;
`3. Affirmation of Daniel S. Ratner, Esq. in Reply and in Opposition
`to Cross Motion/Exhibits A-B.
`
`Factual and Procedural Background
`
`Plaintiff alleges that she was injured on September 19, 2014, when a technician
`employed by defendant negligently prepared her skin with alcohol and sandpaper
`for the
`placement of a halter monitor. Plaintiff alleges that the technician used excessive force in
`placement of the monitor which caused permanent and visible scars on her chest after
`the leads for the monitor were removed.
`
`A jury trial was held before this Court between June 7,2017, and June 12, 2017.
`The jury returned a verdict
`finding that the technician departed from good and accepted
`practice in using excessive force in the placement of the halter monitor and that such
`departure was a substantial
`factor in causing plaintiff's injuries. The jury awarded plaintiff
`
`1 of 3
`
`

`

`FILED: WESTCHESTER COUNTY CLERK 01/03/2018 10:52 AM
`NYSCEF DOC. NO. 53
`RECEIVED NYSCEF: 01/02/2018
`
`INDEX NO. 58545/2015
`
`$300,000 for past pain and suffering and $150,000 over 36 years for future pain and
`suffenng.
`.
`
`Defendant moves to set aside the verdict and for judgment as a matter of law or
`alternatively,
`for an order directing a new trial on the grounds that the verdict
`is against
`the weight of
`the eVidence and the testimony of plaintiff's holter
`technician expert
`Roseanne Pellegrino, should have been precluded. The defendant also moves to set
`aSide the damages award as excessive.
`
`Plaintiff opposes defendant's motion arguing that the verdict was supported by the
`.
`eVidence at tnal. The plaintiff cross-moves to set aside the damages awarded for future
`pam and suffering as inadequate.
`Discussion
`
`,
`
`to CPLR 4404(a), a court may set aside a jury verdict and either direct
`Pursuant
`that judgment be entered in favor of a party entitled to judgment as a matter of law or
`order a new trial where the verdict
`is contrary to the weight of the evidence (see Seong
`Ylm KIm v New York City Tr. Auth., 87 AD3d 531 [2d Dept 2011]).
`
`4404 may be
`to CPLR ...
`"A motion for judgment as a matter of law pursuant
`granted only when the trial court determines that, upon the evidence presented,
`there is
`no valid line of reasoning and permissible inferences which could possibly lead rational
`persons to the conclusion reached by the jury upon the evidence presented at trial, and
`no rational process by which the jury could find in favor of the nonmoving party" (Ryan v
`City of New York, 84 AD 3d 926, 926-927 [2d Dept 2011], quoting Tapia v Dattco,
`Inc., 32
`AD3d 842, 844 [2d Dept 2006]; see Cohen v Hal/mark Cards, 45 NY2d 493, 499 [1978]).
`
`,
`
`A jury verdict should not be set aside as contrary to the weight of the evidence
`unless the evidence so preponderates in favor of the moving party that the jury could not
`have reached its verdict by any fair
`interpretation of the evidence (see Lolik v Big v
`Supermarkets, 86 NY2d 744, 746 [1995]; Seong Yim Kim v New York City Tr. Auth., 87
`AD 3d 531, 532 [2nd Dept 2011]; Nicastro v Park, 113 AD2d 129, 133-134 [2nd Dept
`1985]). "It is within the province of the jury to determine issues of credibility, and great
`deference is accorded to the jury given its opportunity to see and hear the witnesses"
`Inc., 72 AD3d 917, 918 [2d Dept 2010]).
`(Palermo v Original California Taqueria,
`that defendant's EKG technician prepped the
`The trial evidence demonstrates
`plaintiff's skin using alcohol and sandpaper
`tape for the holter monitor
`leads. Plaintiff
`experienced pain when the leads were applied and when they were removed the next
`day. After
`removal,
`the leads left circular marks on plaintiff's body. When the wounds
`healed, plaintiff was left with marks on her chest.
`the jury's findings that
`The Court finds sufficient evidence in the record to support
`the defendant's EKGtechnician
`departed from good and accepted practice in using
`excessive force on the plaintiff's skin in the placement of the holter monitor. The evidence
`was legally sufficient
`to support
`the jury's findings that
`this departure was a substantial
`
`2
`
`2 of 3
`
`

`

`FILED: WESTCHESTER COUNTY CLERK 01/03/2018 10:52 AM
`NYSCEF DOC. NO. 53
`RECEIVED NYSCEF: 01/02/2018
`
`INDEX NO. 58545/2015
`
`factor in causing plaintiff's injuries (see Cohen v Hal/mark Cards, 45 NY2d at 499; Semel
`v Guzman, 84 AD3d 1054, 1056 [2d Dept 2011]; Nicastro v Park, 113 AD2d 129, 132).
`Defendant's argument
`that
`the expert
`testimony of plaintiff's holter
`technician expert,
`Roseanne Pellegrino, should have been precluded is without merit. Defendant argues
`that Ms. Pellegrino had no experience with the sandpaper
`tape used on plaintiff. Ms.
`Pellegrino did indeed testify that she was familiar with the use of sandpaper
`tape as part
`of holter monitor preparation, however, she chose not to use it in her own practice. She
`testified that
`the technician deviated from good and accepted practice by damaging
`plaintiff's skin with the sandpaper
`tape.
`
`the jury's findings were based on a fair interpretation of the evidence
`Moreover,
`and, therefore, were not contrary to the weight of the evidence (see Giammarino v Carlo,
`144 AD3d 1086, 1086-1087 [2d Dept 2016]). Since the plaintiff and the defendant both
`presented expert
`testimony at trial, it was within the province of the jury to determine the
`experts' credibility (see Cohen v Hal/mark Cards, 45 NY2d at 498-499; Giammarino v
`Carlo, 144 AD3d at 1087; Semel v Guzman, 84 AD3d at 1056), and the Court finds no
`reason to disturb the jury's credibility determinations.
`
`The amount of damages awarded is primarily a question for the jury, whose
`determination is entitled to great deference (see Rose v Zinberg, 128 AD3d 940,941 [2d
`Dept 2015]; Fryer v Maimonides Med. Ctr., 31 AD3d 604, 605 [2d Dept 2006]). Here, the
`amount of damages awarded by the jury for plaintiff's past and future pain and suffering
`does not materially deviate from what would be reasonable compensation (see CPLR
`5501 [c]; Colclough v Interfaith Med. Ctr., 256 AD2d 497 [2d Dept 1998]).
`Accordingly, defendant's motion is DENIED and plaintiff's cross motion is DENIED.
`
`Dated:
`
`White Plains, New York
`January 2, 2018
`
`,
`
`H: ALPHABETICAL MASTER LIST - WESTCHESTER/Flores
`
`v. St. John's Riverside
`
`3
`
`3 of 3
`
`

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