| Rodgers v New York City Tr. Auth. |
| 2010 NY Slip Op 01469 [70 AD3d 917] |
| February 16, 2010 |
| Appellate Division, Second Department |
| Leslie Rodgers, Respondent, v New York City TransitAuthority et al., Appellants. |
—[*1] Hach & Rose, LLP (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac andJillian Rosen], of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from a judgmentof the Supreme Court, Kings County (Schneier, J.), dated May 27, 2008, which, upon a juryverdict on the issue of liability finding that they were 80% at fault in the happening of theaccident and that the plaintiff was 20% at fault in the happening of the accident, upon a juryverdict on the issue of damages, and upon an order of the same court dated February 26, 2008,denying their motion pursuant to CPLR 4404 (a), inter alia, to set aside the verdicts on the issuesof liability and damages and for judgment as a matter of law or, in the alternative, for a new trialis in favor of the plaintiff and against them in the principal sum of $2,375,871.
Ordered that the judgment is reversed, on the law, with costs, those branches of thedefendants' motion which were pursuant to CPLR 4404 (a) to set aside the verdicts on the issuesof causation and damages and for a new trial on those issues are granted, the matter is remitted tothe Supreme Court, Kings County, for a new trial only on the issue of causation and, ifnecessary, damages, and the order is modified accordingly. The findings of fact as to thedefendants' negligence and the apportionment of fault are affirmed.
On September 22, 2003, the plaintiff, Leslie Rodgers, allegedly was injured when he wasstruck by a bus owned by the defendant New York City Transit Authority (hereinafter NYCTA)and operated by Jose Arroyo, sued herein as John Doe, as the plaintiff was crossing GatesAvenue at its intersection with Franklin Avenue in Brooklyn.
After serving a notice of claim upon NYCTA, and thereafter commencing this action, theplaintiff served a verified bill of particulars dated June 4, 2003, alleging that he sustainedpermanent, serious personal injuries including, inter alia, L5-S1 disc protrusion withimpingement on the proximal right S1 nerve root and L4-5 disc bulge. On July 27, 2006, heunderwent surgery consisting of right-sided hemilaminotomy, L5-S1 and right-sided partialdiskectomy L5-S1. The plaintiff did not claim aggravation of any preexisting condition or priorinjuries. After the trial on the issue of liability, the jury found the defendants 80% at fault in thehappening of the accident and the plaintiff 20% at fault.[*2]
After the trial on the issue of damages, the jury foundthat the plaintiff, as a result of the accident of September 22, 2003, sustained a "significantlimitation of use of body function or system." The jury awarded the plaintiff the sums of$200,000 for past pain and suffering, $1,210,000 for future pain and suffering for 25 years,$60,000 for past loss of earnings, and $905,871 for future loss of earnings over 17 years.
The defendants moved, pursuant to CPLR 4404 (a), inter alia, to set aside the jury verdict onthe issues of liability and damages, and for a judgment as a matter of law, arguing, among otherthings, that several of the plaintiff's injuries were not proximately caused by the subject accident,and that those injuries which may have been caused by the accident did not meet the threshold ofserious injury required by Insurance Law § 5102 (d). In an order dated February 26, 2008,the Supreme Court denied the defendants' motion. A judgment in favor of the plaintiff wassubsequently entered. The defendants appeal. We reverse, and grant a new trial on the issues ofcausation and, if necessary, damages.
A postverdict motion pursuant to CPLR 4404 (a) for judgment as a matter of law, made onthe ground that a jury verdict is not supported by legally sufficient evidence, may be grantedonly if the court concludes that there is "simply no valid line of reasoning and permissibleinferences which could possibly lead rational [persons] to the conclusion reached by the jury onthe basis of the evidence presented at trial" (Cohen v Hallmark Cards, 45 NY2d 493, 499[1978]; see Soto v City of New York, 63 AD3d 1035 [2009]; Downes v City ofMount Vernon, 60 AD3d 804 [2009]).
In the first instance, and contrary to the defendants' contention, the notice of claim wassufficient to enable the defendants to investigate the allegations contained therein. The notice ofclaim was sufficient for the defendant to locate the place, fix the time, and understand the natureof the accident (see Brown v City of New York, 95 NY2d 389, 393 [2000]). Further,there is no merit to the defendants' contention that the plaintiff changed his theory of recoveryfrom a claim that he was hit by a bus designated as number 9167, as set forth in the notice ofclaim, to a generalized claim at trial that he was merely hit by "a bus." The theory propoundedby the plaintiff at trial, and as charged to the jury, was that the plaintiff was hit by a bus operatedby Jose Arroyo, and that the particular bus operated by Arroyo was designated as number 9167.Accordingly, the plaintiff did not rest his action on a theory that was not asserted in the notice ofclaim (cf. Wanczowski v City of New York, 186 AD2d 397 [1992]; Brown v NewYork City Tr. Auth., 172 AD2d 178 [1991]; Mazzilli v City of New York, 154AD2d 355 [1989]).
Additionally, we reject the defendants' contentions that, based on the evidence adduced attrial, the jury's findings that the defendants were negligent and that the plaintiff's injuriesconstituted a "serious injury," as well as the jury's apportionment of fault between the plaintiffand the defendants, were not rationally based on a valid line of reasoning and permissibleinferences drawn from that evidence.
Moreover, it is for the jury to make determinations as to the credibility of the witnesses, andit is accorded great deference, as it had the opportunity to see and hear the witnesses (seeDavison v New York City Tr. Auth., 63 AD3d 871 [2009]; Bertelle v New York City Tr.Auth., 19 AD3d 343 [2005]). A jury verdict in favor of a plaintiff may not be set aside ascontrary to the weight of the evidence unless "the evidence so preponderate[s] in favor of the[defendants] that [the verdict] could not have been reached on any fair interpretation of theevidence" (Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995] [internal quotationmarks omitted]). Here, the jury verdicts on the issues of the defendants' negligence and theapportionment of fault were not contrary to the weight of the evidence, since they were basedupon a fair interpretation of the evidence (see CPLR 4404 [a]; Gonzalez v City ofNew York, 45 AD3d 347, 348 [2007]; Hernandez v Vavra, 62 AD3d 616 [2009];Nicastro v Park, 113 AD2d 129 [1985]; cf. Batal v Associated Univs., 293 AD2d558 [2002]; Wasserman v Wong, 181 AD2d 672 [1992]).
However, in light of an error in the court's charge to the jury, we cannot determine, on therecord before us, whether the jury's finding that the injuries it found to be "serious" wereproximately caused by the accident was unsupported by legally sufficient evidence or wascontrary to the weight of the evidence. Accordingly, this error requires a new trial on the issuesof causation and, if necessary, damages. Specifically, aggravation of a preexisting injury orcondition is an element of damages which must be [*3]affirmatively pleaded and proven before recovery can be allowed(see Anderson v Dainack, 39 AD3d 1065, 1068 [2007]; Ruggiero v Banner Glass &Mirror Corp., 232 AD2d 395, 396 [1996]; Behan v Data Probe Intl., 213 AD2d 439,440 [1995]; De Mento v Nehi Beverages, 55 AD2d 794, 795 [1976]). Here, it isundisputed that the plaintiff failed to allege, either in his complaint or in his six bills ofparticulars, that he sustained an aggravation of any preexisting degenerative disc condition.Accordingly, it was error for the court to charge, pursuant to PJI 2:283, and over the defendants'objection, that the jury could award damages for increased susceptibility to injury, based upon analleged preexisting condition. Under the circumstances of this case, the erroneous charge wasprejudicial to the defendants, and warrants a new trial on the issues of which of the plaintiff'sinjuries, if any, were proximately caused by the subject accident, whether any injuriesproximately caused by the accident constituted a "serious injury" within the meaning ofInsurance Law § 5102 (d), and the appropriate measure of damages for past and futurepain and suffering and past and future loss of earnings that are attributable to the injuries, if any,proximately caused by the accident (see Ruggiero v Banner Glass & Mirror Corp., 232AD2d 395, 396 [1996]).
Accordingly, the judgment must be reversed, and the matter must be remitted to the SupremeCourt, Kings County, for a new trial on the issues of causation and, if necessary, damages.
In light of the foregoing, it is unnecessary to reach the defendants' remaining contention thatthe jury's awards for pain and suffering and loss of earnings were excessive. Skelos, J.P., Eng,Austin and Roman, JJ., concur.