`NYSCEF DOC. NO. 85
`RECEIVED NYSCEF: 07/22/2016
`
`INDEX NO. 59349/2013
`
`1 of 4
`
`
`
`June 2013, Guzzo commenced this action against Mercado and his employer. She
`
`alleged a negligence claim against defendants.
`
`Tn'al — This Court presided over the jury trial in this action in August 2015. The
`
`jury heard Guzzo's testimony that, before she stepped off the curb to cross the street,
`
`she looked to her left to watch for oncoming traffic, and she looked to her left again
`
`while crossing. When she looked to her left while crossing, Guzzo testified, she saw
`
`Mercado's vehicle slow down while it approached the stop sign, and she assumed the
`
`vehicle would come to a halt. On cross examination, however, Guzzo stated that she
`
`looked to her left once before stepping off the curb and did not look again while
`
`crossing. The jury also reviewed surveillance videos which had recorded the accident,
`
`as well as still photographs taken from the videos.
`
`With respect to damages, Guzzo‘s expert physician testified that, in the future,
`
`she would require a laminectomy and spinal fusion surgery for her back and knee
`
`replacement surgery. The expert opined that this medical treatment would cost
`
`$ 154,000. On cross-examination, the expert conceded that the chart and other medical
`
`records he had prepared for Guzzo did not mention the need for any future surgeries.
`
`Defendants’ expert physician testified that back surgery was unnecessary, and
`
`that any need for knee replacement was the result of Guzzo’s preexisting arthritis and
`
`unrelated to the injuries she had sustained during the accident. With respect to Guzzo’s
`
`past medical expenses, defendants’ expert opined that Guzzo had undergone
`
`arthroscopic procedures that were unnecessary or unrelated to the accident.
`
`At the conclusion of the trial, the jury returned the following special verdicts: (1)
`
`Mercado had negligently operated the vehicle that struck plaintiff; (2) Guzzo had also
`
`2
`
`2of4
`2 of 4
`
`
`
`been negligent; (3) both Mercado’s and Guzzo’s negligence had been a substantial
`
`factor in causing Guzzo’s injuries; and (4) Mercado was 70% at fault and Guzzo was
`
`30% at fault.
`
`For damages, the jury awarded Guzzo $ 100,000 for past pain and suffering,
`
`$ 100,000 for future pain and suffering (to provide compensation for five years),
`
`$ 86,000 for past medical expenses, and $ 84,000 for future medical expenses.
`
`Motion — With respect to the comparative negligence finding, Guzzo argues that
`
`the determination that she was 30°/o at fault was against the weight of the evidence.
`
`According to Guzzo, her testimony and the video and still photographs prove that she
`
`exercised due care.
`
`That contention is unconvincing. “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” (DiDonna v Houck, 111 AD3d 662,
`
`663 [2d Dept 2013]). Here, the jury was entitled to reject Guzzo’s testimony that she
`
`looked to her left both before and while she attempted to cross the street, especially
`
`since she contradicted herself during cross examination. Moreover, the video and still
`
`photographs are ambiguous, and the jury was free to evaluate whether they supported
`
`or contradicted Guzzo’s testimony.
`
`In any event, the circumstances of this case, in which plaintiff saw Mercado’s
`
`vehicle approaching the stop sign, but did not see it come to a halt, presented a
`
`question of fact whether Guzzo acted reasonably by proceeding to cross the street (see
`
`Azeem v Cava, 92 AD3d 821 [2d Dept 2012]). The cases cited by Guzzo, in which
`
`drivers who hit pedestrians were found 100% at fault, are inapposite because they are
`
`3
`
`3<>f4
`3 of 4
`
`
`
`either distinguishable on their facts or because the opinions do not provide enough
`
`factual detail for this Court to determine their relevance.
`
`Plaintiff request for additur is also denied. Sufficient evidence was adduced at
`
`trial to support the jury award for past and future medical expenses. Defendants’ expert
`
`challenged the necessity of Guzzo‘s past arthroscopic procedures and their connection
`
`with the automobile accident, and the jury was free to credit that testimony and reduce
`
`the award that Guzzo sought (about $ 115,000) . Plaintiff asserts that defendants
`
`stipulated that Guzzo had incurred higher medical expenses, but defendants did not
`
`stipulate that all of those expenses were caused by the accident. As for Guzzo‘s future
`
`medical expenses, conflicting expert evidence was offered and the jury was entitled to
`
`credit the testimony of defendants’ expert that certain procedures were unnecessary or
`
`unrelated to the accident.
`
`Accordingly, it is hereby
`
`ORDERED, that plaintiff's motion to set aside the verdict pursuant to CPLR
`
`4404(a) is denied.
`
`The foregoing constitutes the Order of the Court.
`
`Dated: White Plains, New York
`July 19, 2016
`
`
`
`
`HON. ESTER B. DLER
`SUPREME COURT JUSTICE
`
`4of4
`4 of 4
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
