| Sanz v MTA-Long Is. Bus |
| 2007 NY Slip Op 10523 [46 AD3d 867] |
| December 26, 2007 |
| Appellate Division, Second Department |
| Tracey Sanz, Respondent, v MTA-Long Island Bus,Appellant. |
—[*1] Sackstein Sackstein & Lee, LLP, Garden City, N.Y. (Leonard B. Chipkin of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals, as limited by itsbrief, from so much of a judgment of the Supreme Court, Nassau County (Feinman, J.), datedMay 16, 2006, as, upon a jury verdict finding that the plaintiff sustained a serious injury andawarding the plaintiff damages in the sums of $350,000 for past pain and suffering and $400,000for future pain and suffering, and upon the denial of its motion pursuant to CPLR 4404, inter alia,to set aside the jury verdict and for judgment as a matter of law, is in favor of the plaintiff andagainst it in the principal sum of $750,000.
Ordered that the judgment is reversed insofar as appealed from, on the facts and in theexercise of discretion, with costs, and the matter is remitted to the Supreme Court, NassauCounty, for a new trial on the issue of damages, unless within 30 days after service upon theplaintiff of a copy of this decision and order, the plaintiff shall serve and file in the office of theClerk of the Supreme Court, Nassau County, a written stipulation consenting to reduce theverdict as to damages for past pain and suffering from the principal sum of $350,000 to theprincipal sum of $200,000 and to reduce the verdict as to damages for future pain and sufferingfrom the principal sum of $400,000 to the principal sum of $200,000, and to the entry of anappropriate amended judgment accordingly; in the event that the plaintiff so stipulates, then thejudgment, as so reduced and amended, is affirmed insofar as appealed from, without costs ordisbursements.
This action arises from a motor vehicle accident on August 12, 2002 when a bus owned bythe defendant and in which the plaintiff was riding as a passenger, was struck by another bus.The plaintiff claimed that, as a result of the accident, she sustained herniated discs in her cervicalspine and numbness and tingling in both hands. Approximately one month after the [*2]accident, the plaintiff underwent an anterior cervical discectomy,with an allograft and plate fusion.
At trial, the defendant failed to call as witnesses any of the doctors whom it had retained toexamine the plaintiff. Instead, the defendant's strategy was to show that the plaintiff's variousinjuries were the result of an earlier accident, which occurred in January 1994.
On appeal, the defendant contends, inter alia, that the plaintiff failed to establish a primafacie case that her injuries were sustained in the subject motor vehicle accident, as her medicalexperts failed to indicate an awareness of the prior accident. We disagree. Notably, the plaintiffpresented testimony from her internist, who had conducted a routine annual physical exactly oneweek prior to the subject accident, and found full cervical range of motion and no spinaltenderness at that time. In addition, the plaintiff's treating physician Dr. Stephen Burstein statedthat he would not change his opinion that the plaintiff's injuries were caused by the subjectaccident as a result of learning of the prior accident in 1994, for which she underwent physicaltherapy for a number of years. He explained that the large extruded disc fragment which wasfound in the plaintiff's cervical spine was the result of an acute episode of the kind whichgenerally follows a whiplash type of injury. Moreover, the evidence presented by the plaintiff'smedical experts, including the surgeon who performed the discectomy, established a prima faciecase of serious injury, by virtue of her having sustained a "significant limitation of use of a bodyfunction or system" and a "medically determined injury or impairment of a non-permanent naturewhich [prevented the plaintiff] from performing substantially all of the material acts which[constituted her] usual and customary daily activities for not less than ninety days during the onehundred eighty days immediately following the occurrence of the injury or impairment"(Insurance Law § 5102 [d]).
However, the jury's damages awards deviated materially from what would be reasonablecompensation to the extent indicated (see CPLR 5501 [c]).
The defendant's remaining contentions are either unpreserved for appellate review, waived,or without merit. Santucci, J.P., Krausman, Florio and Lifson, JJ., concur.