| Vainer v DiSalvo |
| 2013 NY Slip Op 03991 [107 AD3d 697] |
| June 5, 2013 |
| Appellate Division, Second Department |
| Shiran Vainer, Appellant, v C.J. DiSalvo et al.,Respondents, et al., Defendants. |
—[*1] James G. Bilello (Montfort, Healy, McGuire & Salley, Garden City, N.Y. [Donald S.Neumann, Jr.], of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby her notice of appeal and brief, from so much of a judgment of the Supreme Court,Kings County (Martin, J.), entered January 24, 2012, as, upon, inter alia, a jury verdict onthe issue of damages, awarded her the principal sum of only $18,000 for future pain andsuffering and future loss of enjoyment of life against the defendants C.J. DiSalvo, JoanneM. DiSalvo, and Steven J. DiSalvo.
Ordered that the judgment is reversed insofar as appealed from, on the facts and inthe exercise of discretion, with costs, and the matter is remitted to the Supreme Court,Kings County, for a severance of and a new trial on the issue of damages for future painand suffering and future loss of enjoyment of life only against the defendants C.J.DiSalvo, Joanne M. DiSalvo, and Steven J. DiSalvo, unless within 30 days after serviceupon them of a copy of this decision and order, the defendants C.J. DiSalvo, Joanne M.DiSalvo, and Steven J. DiSalvo shall serve and file in the office of the Clerk of theSupreme Court, Kings County, a written stipulation consenting to increase the award ofdamages for future pain and suffering and future loss of enjoyment of life against themfrom the principal sum of $18,000 to the principal sum of $300,000, and to the entry ofan appropriate judgment thereafter; in the event that the defendants C.J. DiSalvo, JoanneM. DiSalvo, and Steven J. DiSalvo so stipulate, then the judgment, as so increased andamended, is affirmed insofar as appealed from, without costs or disbursements.
On December 22, 2006, the plaintiff, who was then 20 years old and pregnant, was apassenger in the right rear seat of an automobile which was involved in a collision with avehicle operated by the defendant C.J. DiSalvo, and allegedly owned by the defendantsJoanne M. DiSalvo and Steven J. DiSalvo (hereinafter collectively the DiSalvos). Afterthis Court determined on a prior appeal that the complaint and all related cross claimsinsofar as asserted against the operator of the vehicle in which the plaintiff was apassenger should have been dismissed as a matter of law (see Vainer v DiSalvo, 79AD3d 1023 [2010]), this case proceeded to trial in October 2011 against theDiSalvos solely on the issue of damages. The evidence revealed that the plaintiffunderwent two arthroscopic surgeries under general anesthesia to repair torn right kneemedial and lateral menisci, and that she [*2]sustainedfour disc bulges in the lumbar region of her spine and a disc herniation at L5-S1.
The jury found that, as a result of the accident, the plaintiff sustained a significantlimitation of use of a body function or system and a permanent consequential limitationof use of a body member, function, or system. They awarded her the sums of $67,000 forher past pain and suffering and past loss of enjoyment of life, $18,000 for future pain andsuffering and future loss of enjoyment of life over a period of two years, and $83,000 forfuture medical costs over a 15-year period. After the jury was discharged, the plaintifforally moved for additur with respect to the award for future pain and suffering andfuture loss of enjoyment of life. The Supreme Court denied the plaintiff's motion, and ajudgment in accordance with the verdict was entered. The plaintiff appeals from so muchof the judgment as awarded her damages for future pain and suffering and future loss ofenjoyment of life in the sum of only $18,000.
While the amount of damages to be awarded for personal injuries is a question forthe jury, and "the jury's determination is entitled to great deference" (Coker v Bakkal Foods, Inc., 52AD3d 765, 766 [2008]; see Schray v Amerada Hess Corp., 297 AD2d 339[2002]), it may be set aside if the award deviates materially from what would bereasonable compensation (see CPLR 5501 [c]; Harvey v Mazal Am.Partners, 79 NY2d 218, 225 [1992]; Davison v New York City Tr. Auth., 87 AD3d 608 [2011];Keaney v City of NewYork, 63 AD3d 794, 795 [2009]; Tyberg v Tomasino, 19 AD3d 405, 405 [2005]). "Althoughprior damage awards in cases involving similar injuries are not binding upon the courts,they guide and enlighten them with respect to determining whether a verdict in a givencase constitutes reasonable compensation" (Miller v Weisel, 15 AD3d 458, 459 [2005]; see Nutley v New York City Tr.Auth., 79 AD3d 711 [2010]).
Here, the plaintiff's doctor testified that her traumatically induced injuries werepermanent and progressive, an opinion that the jury accepted. He also testified that, in thefuture, the plaintiff would require additional arthroscopic surgeries and a total kneereplacement in addition to, inter alia, physical therapy and trigger-point injections. Underthese circumstances, and taking into consideration prior damage awards in casesinvolving similar injuries, the damages award for future pain and suffering and futureloss of enjoyment of life deviated materially from what would be reasonablecompensation, and was insufficient to the extent indicated (see CPLR 5501 [c];Purkiss-Riddle v New YorkCity Tr. Auth., 89 AD3d 1001 [2011]; Adames v Awad, 47 AD3d 737 [2008]; Hammond v Welsh, 29 AD3d518 [2006]; Ferrantello v St. Charles Hosp. & Rehabilitation Ctr., 275 AD2d387 [2000]).
The parties' remaining contentions either have been rendered academic in light of ourdetermination or are without merit.
Accordingly, there must be a new trial on the issue of damages for future pain andsuffering and future loss of enjoyment of life, unless the DiSalvos stipulate to the amountindicated. Dillon, J.P., Lott, Austin and Hinds-Radix, JJ., concur.