| Garrison v Lapine |
| 2010 NY Slip Op 03515 [72 AD3d 1441] |
| April 29, 2010 |
| Appellate Division, Third Department |
| Diane Garrison et al., Respondents, v Stephen Lapine et al.,Appellants. |
—[*1] Rusk, Waldin, Heppner & Martuscello, L.L.P., Kingston (John G. Rusk of counsel), forrespondents.
Stein, J. Appeals (1) from a judgment of the Supreme Court (Platkin, J.), entered March 5,2009 in Ulster County, upon a verdict rendered in favor of plaintiff, and (2) from an order of saidcourt, entered July 1, 2009 in Ulster County, which denied defendants' motion to set aside theverdict.
Plaintiff Diane Garrison (hereinafter plaintiff) and her husband, derivatively, commencedthis action to recover damages resulting from injuries sustained by plaintiff in an automobileaccident. Defendants conceded liability but a jury trial was held to determine, among otherthings, causation and damages. After finding that plaintiff had suffered a significant limitation ofthe use of a body function or system, as well as a permanent consequential limitation of the useof a body organ or member (see Insurance Law § 5102 [d]), the jury awardedplaintiff $500,000 for past pain and suffering and $2 million for future pain and suffering for aperiod of 31 years. In addition, the jury awarded plaintiff's husband $400,000 for loss ofconsortium.
Defendants moved to set aside the verdict, asserting that the damage award deviatedmaterially from what would be reasonable compensation (see CPLR 5501 [c]).Defendants also sought to stay entry of plaintiffs' proposed judgment and, in the alternative,submitted their own proposed judgment, using a different discount rate to determine the presentvalue of the future [*2]pain and suffering award (seegenerally CPLR 5041 [e]). Supreme Court refused to grant a stay or to adopt defendants'proposed discount rate and a judgment was entered accordingly. Thereafter, upon the court'sdenial of defendants' motion to set aside the verdict, these appeals ensued.
We affirm. An award of damages is a factual determination to be made by the jury and isaccorded deference unless "it deviates materially from what would be reasonable compensation"(CPLR 5501 [c]; see Doviak v Lowe'sHome Ctrs., Inc., 63 AD3d 1348, 1353 [2009]). "To successfully challenge adetermination as to the amount of damages to be awarded, the record evidence mustpreponderate in favor of the moving party to such a degree that the verdict could not have beenreached on any fair interpretation of the evidence" (Simeon v Urrey, 278 AD2d 624, 624[2000] [citations omitted]).
Here, plaintiffs' medical experts testified that plaintiff suffered from a traumatic brain injury.To the extent that their opinions differed from those of defendants' experts, the jury was entitledto credit plaintiffs' witnesses (see Vogelv Cichy, 53 AD3d 877, 879 [2008]; Kithcart v Mason, 51 AD3d 1162, 1164 [2008]). In addition, "therecord is replete with expert and lay proof regarding the devastating effect that plaintiff'sresulting [cognitive and behavioral problems] had on her to the time of trial and will continue tohave on her life" (La Fountaine v Franzese, 282 AD2d 935, 939 [2001]; see Doviak vLowe's Home Ctrs., Inc., 63 AD3d at 1353; Popolizio v County of Schenectady, 62 AD3d 1181, 1184 [2009];Norton v Nguyen, 49 AD3d927, 930-931 [2008]). The evidence presented to the jury included, among other things,testimony that for the first six months following the accident, plaintiff was unable to do anythingbut sit in a chair with heat packs and that she continues to suffer from headaches that often causeher to sleep all day. There was also testimony that she suffers from excessive fatigue and she isunmotivated and/or unable to participate in many of the activities which she enjoyed prior to theaccident. For example, whereas plaintiff was previously very involved in volunteering in thecommunity and assisting her children, as well as performing daily household tasks such ascooking and cleaning, since the accident she has been limited in the activities she is able toperform and in her ability to interact with her family. Various witnesses also observed plaintiff'stendency to engage in child-like behavior at times and her severe irritability at other times.Significantly, plaintiff's speech has progressively become increasingly jumbled, resulting in aninability to express herself which, in turn, causes her to be frustrated and/or to makeinappropriate responses or comments. Witnesses further testified regarding plaintiff's erratic andunpredictable behavior, including an attempt to jump from a moving car and laying down in themiddle of the street, expressing her hope that a car would hit her. Significantly, there wascredible expert testimony that plaintiff's condition was chronic and that her prognosis was poor.
In view of the foregoing, we find that the jury's verdict here was amply supported by a fairinterpretation of the evidence. Moreover, considering "the nature, extent and permanency of[plaintiff's] injuries, the extent of past, present and future pain and the long-term effects of theinjury" (Nolan v Union Coll. Trust ofSchenectady, N.Y., 51 AD3d 1253, 1256 [2008], lv denied 11 NY3d 705[2008]; see Doviak v Lowe's Home Ctrs., Inc., 63 AD3d at 1353; La Fountaine vFranzese, 282 AD2d at 939) and recognizing that damage awards for pain and suffering areinherently subjective and not subject to precise quantification or formulas (see Garrow v Rosettie Assoc., LLC, 60AD3d 1125, 1125 [2009]; Neissel vRensselaer Polytechnic Inst., 54 AD3d 446, 453 [2008], lv denied 11 NY3d 716[2009]; Nolan v Union Coll. Trust of Schenectady, N.Y., 51 AD3d at 1256), the damagesawarded were well within the range of reasonable compensation (compare Doviak v Lowe'sHome Ctrs., Inc., 63 AD3d at 1353; Popolizio v County of [*3]Schenectady, 62 AD3d at 1184-1185; Auer v State of NewYork, 289 AD2d 626, 629 [2001]).
Likewise, we are unpersuaded by defendants' contention that the jury's $400,000 award forloss of consortium was excessive. In this regard, the evidence demonstrated that the injuriessuffered by plaintiff as a result of the accident placed upon her husband "extraordinary emotionaland physical demands . . . [that] dramatically affected and, in a very real way,altered [his] relationship with [his wife]" (Doviak v Lowe's Home Ctrs., Inc., 63 AD3d at1354). Plaintiff requires long-term care and her condition has compelled her husband to assumethe duties of her nurse, as well as plaintiff's previous role of household caretaker. Plaintiff'sinjuries have also resulted not only in a lack of intimacy, but in marital turmoil. In one instance,her irritable state and erratic behavior included a threat to kill her husband, forcing him to leavethe marital residence for several weeks. In addition, he has been precluded from seeking newresponsibilities that may lead to advancement in his employment, as he is frequently required toleave his job on short notice to attend to plaintiff's needs. Under these circumstances, we cannotsay that the $400,000 award for loss of consortium materially deviates from what is reasonablecompensation (compare id. at 1353-1354; Kirschhoffer v Van Dyke, 173 AD2d7, 10-11 [1991]).
Finally, for the well-articulated reasons set forth in Supreme Court's decision, we aresatisfied that the use of the 10-year treasury bond rate in place at the time of the verdict as thediscount rate in determining the present value of plaintiff's future damage award was in allrespects proper (see generally CPLR 5041 [e]; Desiderio v Ochs, 100 NY2d 159[2003]; Tassone v Mid-Valley OilCo., 5 AD3d 931, 933 [2004], lv denied 3 NY3d 608 [2004]).
Mercure, J.P., Peters, Rose and McCarthy, JJ., concur. Ordered that the judgment and orderare affirmed, with costs. [Prior Case History: 22 Misc 3d 1128(A), 2009 NY Slip Op50325(U).]