| Albanese v Przybylowicz |
| 2014 NY Slip Op 02491 [116 AD3d 1216] |
| April 10, 2014 |
| Appellate Division, Third Department |
| James Albanese, Respondent, v Michael J. Przybylowicz etal., Appellants. |
—[*1] Abdella Law Firm, Gloversville (George Abdella of counsel), forrespondent.
McCarthy, J. Appeal from an order of the Supreme Court (Aulisi, J.), entered March18, 2013 in Fulton County, which granted plaintiff's motion to set aside a verdict andordered a new trial on the issue of damages.
Plaintiff's vehicle was struck by a vehicle that was owned by defendant James D.Przybylowicz and was being operated by defendant Michael J. Przybylowicz. As a resultof the accident, plaintiff suffered two fractures to his nondominant left hand—oneto a bone in his middle finger and one to a bone in his palm—as well as neck strainand a hematoma to his shin. Plaintiff commenced this negligence action. Defendantsconceded liability and, at a trial on the issue of damages, a jury rendered a verdictawarding plaintiff $2,000 for past pain and suffering and nothing for future pain andsuffering. Plaintiff moved to set aside the verdict (see CPLR 4404 [a]). SupremeCourt granted the motion and ordered a new trial on damages unless defendantsstipulated to a combined award of $9,000.[FN1]Defendants appeal.
Although the amount of damages awarded for personal injuries is a factual questionfor a jury to resolve, a court may set aside a jury award of damages when that award"deviates materially from what would be reasonable compensation" (CPLR 5501 [c]; see Ciuffo v Mowery Constr.,Inc., 107 AD3d 1195, 1197 [2013]; Vogel v Cichy, 53 AD3d 877, 878 [2008]). "The [*2]jury's interpretation of the evidence is entitled toconsiderable deference, and [courts] will not disturb it unless the evidence sopreponderates in favor of the moving party that the verdict could not have been reachedon any fair interpretation of the evidence" (Olmsted v Pizza Hut of Am., Inc., 81 AD3d 1223, 1224[2011] [citations omitted]; seeMihalko v Regnaiere, 36 AD3d 983, 984 [2007]). To determine the appropriateamount of an award for pain and suffering, which is essentially subjective and hard toquantify, courts should "examine[ ] comparable cases" and consider "the nature andextent of the injuries, the degree of past, present and future pain and the permanency ofthe injury" (Ciuffo v Mowery Constr., Inc., 107 AD3d at 1197).
Here, it is undisputed that plaintiff fractured two bones in his left hand in the instantaccident, entitling him to recover for past pain and suffering for all of the injuries that hesuffered in the accident (see Vogel v Cichy, 53 AD3d at 880; Butcher vRotterdam Sq. Mall, 268 AD2d 941, 941 [2000]; see also Schmidt v Meehan, 97 AD3d 940, 940 [2012]).The bruise on his shin and pain in his neck were basically healed within one month. Forthe fractures, plaintiff wore a cast for one month, then had his fingers buddy-tapedtogether for a period of time. He returned to his physician's office and participated inphysical therapy over the course of approximately six months. The physician testifiedthat plaintiff's fractures healed in good position, he was able to fully straighten his fingerand bend it almost fully to his palm, but he had some deformity and swelling within thefinger that was permanent. The physician found a marked loss of motion in the middlefinger and assigned a 50% schedule loss of use of that finger, although the physicaltherapy discharge notes stated that plaintiff had made significant progress and his rangeof motion and strength of his finger were within functional limits. Plaintiff testified thathe has difficulty performing tasks that he formerly did, including gripping motions suchas playing ball with his son, playing golf and carrying a ladder as part of his job as apainter.
Plaintiff testified that he never previously injured his finger or sought treatment forit. Plaintiff's medical record contained an entry that, while not entirely clear, indicatedthat plaintiff had prior problems with that finger. The records and X rays also indicatedthat plaintiff had degenerative changes that caused arthritis in that finger. The physiciantestified that this was trauma-induced arthritis, but also acknowledged that the level ofdegeneration could not have developed between the time of the instant accident and thetime that the first X ray was taken. Considering this testimony, the jury could havedisbelieved plaintiff's testimony denying any prior injury or treatment to his left middlefinger, and instead found that some or all of his difficulties were related to a prior injuryor degenerative changes. If the jury felt that plaintiff was being untruthful regarding hismedical history, and that his prior criminal conviction affected his credibility, the jurycould have disbelieved plaintiff's testimony regarding the amount of pain and the effectsand limitations on his daily activities that he suffered as a result of the fractures (seeCiuffo v Mowery Constr., Inc., 107 AD3d at 1197-1198; Olmsted v Pizza Hut ofAm., Inc., 81 AD3d at 1224). While an injured person can recover for theaggravation of a previously-dormant condition that causes that condition to becomesymptomatic (see Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995];Stram v Farrell, 223 AD2d 260, 265 [1996]), the jury could have determined,based on its credibility findings regarding plaintiff, that the injuries he sustained in theinstant accident had resolved by the time of trial and he was no longer suffering from anynew injury or aggravation of any previous injury as a result of this accident (see Latour v Hayner HoytCorp., 13 AD3d 1147, 1148-1149 [2004]; Molter v Gaffney, 273 AD2d773, 775 [2000]; Teller v Anzano, 263 AD2d 647, 649 [1999]; compareMihalko v Regnaiere, 36 AD3d at 985). Accordingly, a fair interpretation of theevidence would support the portion of the jury's verdict that declined to award himanything for future pain and suffering, such that this determination does not deviatematerially from what would be reasonable (see Olmsted v Pizza [*3]Hut of Am., Inc., 81 AD3d at 1224; Vogel vCichy, 53 AD3d at 879; Teller v Anzano, 263 AD2d at 649; compareMarshall v Lomedico, 292 AD2d 669, 671 [2002]).
On the other hand, the evidence does not support the jury's award of $2,000 for pastpain and suffering. Regardless of whether the jury credited plaintiff's testimony regardinghis pain and limitations, common sense and a comparison of other cases indicates that theinjuries he suffered caused compensable pain (see Teller v Anzano, 263 AD2d at649). Based on plaintiff's two broken bones in his nondominant hand that tookapproximately six months to heal, as well as the short-lived neck pain and shinhematoma, the $9,000 set by Supreme Court is much more reasonable than the jury's$2,000 award (see Vogel v Cichy, 53 AD3d at 880-881 [awarding $25,000 forpast pain and suffering due to fractured finger on dominant hand]; Gibson v Tsandikos, 23 AD3d801, 802 [2005] [affirming award of $20,000 for past damages due to fracture ofright thumb]; Marshall v Lomedico, 292 AD2d at 670-671 [affirming award of$6,000 for past damages related to two fractured fingers on nondominant hand andbruised knee]; Cline v State of New York, 289 AD2d 672, 673 [2001] [affirmingaward of $30,000 for fractured humerus, fractured bone in foot and shoulder strain];Baker v Shepard, 276 AD2d 873, 876 [2000] [affirming $7,500 award for pastdamages for left humerus fracture and cervical strain]).[FN2]
Peters, P.J., Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote 1: Supreme Court did notdistinguish between past and future pain and suffering.
Footnote 2: Because plaintiff didnot cross-appeal, we are limited by Supreme Court's award as to the amount of damages.