| Kayes v Liberati |
| 2013 NY Slip Op 01534 [104 AD3d 739] |
| March 13, 2013 |
| Appellate Division, Second Department |
| Mohammed Kayes et al., Respondents, v NicholasR. Liberati et al., Appellants. |
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Hogan & Cassell, LLP, Jericho, N.Y. (Michael Cassell of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendants appeal (1)from a judgment of the Supreme Court, Queens County (Hart, J.), dated September 15,2010, and (2), as limited by their brief, from so much of an amended judgment of thesame court dated January 25, 2012, as, upon the granting of the plaintiffs' motionpursuant to CPLR 4401 for judgment as a matter of law on the issue of damages for pastand future lost earnings and medical expenses, made at the close of evidence, and upon ajury verdict on the issue of damages for past and future pain and suffering, is in favor ofthe plaintiff Mohammed Kayes and against them in the principal sums of $605,000 forfuture lost earnings, $831,640 for future medical expenses, $500,000 for past pain andsuffering, and $1,500,000 for future pain and suffering.
Ordered that the appeal from the judgment is dismissed, as that judgment wassuperseded by the amended judgment; and it is further,
Ordered that the amended judgment is modified, on the law, by deleting theprovisions thereof awarding the plaintiff Mohammed Kayes damages in the principalsums of $605,000 for future lost earnings and $831,640 for future medical expenses; asso modified, the judgment is affirmed insofar as appealed from, without costs ordisbursements, and the matter is remitted to the Supreme Court, Queens County, for anew trial on the issue of damages for future lost earnings and future medical expensesonly, and the entry of an appropriate amended judgment thereafter.
The plaintiff Mohammed Kayes was injured when a motor vehicle, owned by thedefendant New York City Transit Authority and operated by the defendant Nicholas R.Liberati, backed into a stop sign causing it to fall and strike him. As a result of theaccident, Mohammed Kayes sustained injuries, including a herniated disc. He alsounderwent surgery and, according to the plaintiffs' experts, will continue to experiencesignificant pain and require future surgery and medical treatment, including painmanagement and physical therapy, for the rest of his life. Moreover, as a result of theaccident, Mohammed Kayes was no longer able to work in any significant capacity andcould no longer engage in activities which he had previously enjoyed.[*2]
After a trial on the issue of damages, theSupreme Court, inter alia, upon the granting of the plaintiffs' motion pursuant to CPLR4401 for judgment as a matter of law on the issue of damages for past and future lostearnings and medical expenses, and upon a jury verdict on the issue of damages for pastand future pain and suffering, awarded Mohammed Kayes damages in the principal sumsof $605,000 for future lost earnings, $831,640 for future medical expenses, $500,000 forpast pain and suffering, and $1,500,000 for future pain and suffering.
A "party may move for judgment with respect to a cause of action or issue upon theground that the moving party is entitled to judgment as a matter of law" (CPLR 4401)."A trial court's grant of a CPLR 4401 motion for judgment as a matter of law isappropriate where the trial court finds that, upon the evidence presented, there is norational process by which the fact trier could base a finding in favor of the nonmovingparty" (Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; see Aikens-Hobson v Bruno,97 AD3d 709 [2012]; Nunez v Motor Veh. Acc. Indem. Corp., 96 AD3d 917[2012]). In considering the motion, the court "must afford the party opposing the motionevery inference which may properly be drawn from the facts presented, and the factsmust be considered in a light most favorable to the nonmovant" (Szczerbiak vPilat, 90 NY2d at 556; see Aikens-Hobson v Bruno, 97 AD3d at 710;Nunez v Motor Veh. Acc. Indem. Corp., 96 AD3d at 918).
Here, affording the defendants every inference which may properly be drawn fromthe facts presented, there is a rational process by which the jury could have come toawards for future lost earnings and future medical expenses less than those directed bythe trial court.
With respect to the awards for past and future pain and suffering, the jury'sdetermination " 'will not be disturbed unless the award deviates materially from whatwould be reasonable compensation' " (Guallpa v Key Fat Corp., 98 AD3d 650, 651 [2012],quoting Graves v New YorkCity Tr. Auth., 81 AD3d 589, 589 [2011]; see CPLR 5501 [c]). The"reasonableness" of compensation must be measured against relevant precedent ofcomparable cases (see Turusetav Wyassup-Laurel Glen Corp., 91 AD3d 632 [2012]; Donlon v City of NewYork, 284 AD2d 13 [2001]).
Here, considering the nature and extent of the injuries sustained by MohammedKayes and comparable precedent, the jury's awards for past and future pain and sufferingdid not deviate materially from what would be reasonable compensation (seeCPLR 5501 [c]; Guallpa v Key Fat Corp., 98 AD3d at 651).
Accordingly, we must remit the matter to the Supreme Court, Queens County, for anew trial on the issue of damages for future lost earning and future medical expensesonly, and for the entry of an appropriate amended judgment thereafter. Dillon, J.P.,Angiolillo, Leventhal and Sgroi, JJ., concur.