| Lariviere v New York City Tr. Auth. |
| 2015 NY Slip Op 06894 [131 AD3d 1130] |
| September 23, 2015 |
| Appellate Division, Second Department |
[*1]
| Leslie Karen Lariviere et al.,Respondents, v New York City Transit Authority et al., Appellants, et al.,Defendants. |
Wallace D. Gossett, Brooklyn, N.Y. (Lawrence Heisler of counsel), forappellants.
Ronemus & Vilensky LLP (Lisa M. Comeau, Garden City, N.Y., of counsel),for respondents.
In an action to recover damages for personal injuries, etc., the defendants New YorkCity Transit Authority and Eugene E. Matute appeal from an order of the Supreme Court,Kings County (Baily-Schiffman, J.), dated July 3, 2013, which granted that branch of theplaintiffs' motion pursuant to CPLR 4404 which was to set aside a jury verdict on theissue of damages awarding the plaintiff Leslie Karen Lariviere the sums of $40,000 forpast pain and suffering, $20,000 for future pain and suffering, $26,100 for past lostearnings, $16,000 for future lost earnings, and $50,000 for future medical expenses, andawarding the plaintiff David Lariviere the sums of $10,000 for past loss of services and$0 for future loss of services, and for a new trial on the issue of damages in the interest ofjustice on the ground that the plaintiffs were deprived of a fair trial.
Ordered that the order is reversed, on the facts and in the exercise of discretion, withcosts, the plaintiffs' motion pursuant to CPLR 4404 which was to set aside the juryverdict and for a new trial on the issue of damages is denied, the verdict is reinstated, andthe matter is remitted to the Supreme Court, Kings County, for the entry of anappropriate judgment.
Leslie Karen Lariviere (hereinafter the injured plaintiff) was injured when, whilecrossing a street in Brooklyn, she was struck by a bus owned by the defendant New YorkCity Transit Authority and operated by the defendant Eugene E. Matute (hereinaftertogether the defendants). The injured plaintiff, and her husband suing derivatively,commenced this action against the defendants and were subsequently awarded summaryjudgment on the issue of liability (see Lariviere v New York City Tr. Auth., 82 AD3d 1165[2011]). At a trial on the issue of damages, the jury found that the injured plaintiff hadsustained a "serious injury" within the meaning of Insurance Law § 5102(d), specifically, a "medically determined injury or impairment of a non-permanent naturewhich prevents the injured person from performing substantially all of the material actswhich constitute such person's usual and customary daily activities for not less thanninety days during the one hundred eighty days immediately following the occurrence ofthe injury or impairment" (Insurance Law § 5102 [d]). The jury rejected theplaintiffs' contention that the defendants' negligence had inflicted a traumatic brain injuryresulting in a "permanent consequential limitation [*2]ofuse of a body organ or member" (id.). The jury awarded damages to theplaintiffs.
The plaintiffs moved to set aside the verdict pursuant to CPLR 4404 (a): (1) in theinterest of justice, contending that defense counsel's improper and inflammatory remarksduring summation deprived them of a fair trial; and (2) contending that the verdict as todamages was contrary to the weight of the evidence. The Supreme Court granted themotion on the first ground, and the defendants appeal.
Under CPLR 4404 (a), a trial court has the discretion to order a new trial "in theinterest of justice" (CPLR 4404 [a]; see Micallef v Miehle Co., Div. of Miehle-GossDexter, 39 NY2d 376, 381 [1976]). In considering whether to exercise itsdiscretionary power to order a new trial based on errors at trial, the court "must decidewhether substantial justice has been done, whether it is likely that the verdict has beenaffected . . . and 'must look to [its] own common sense, experience andsense of fairness rather than to precedents in arriving at a decision' (4Weinstein-Korn-Miller, NY Civ Prac, par 4404.11)" (Micallef v Miehle Co., Div. ofMiehle-Goss Dexter, 39 NY2d at 381 [citations omitted]). On appeal, however, thisCourt is invested with the power to decide whether the trial court providently exercisedits discretion (see id.).
Here, we conclude that the Supreme Court improvidently exercised its discretion inordering a new trial. The plaintiffs' claims regarding defense counsel's conduct center onremarks made by defense counsel during her summation, although they also challengeher cross-examination of certain witnesses. Some of the challenged conduct was certainlyimproper, and we do not condone it (see Cherisol v Resnik, 85 AD3d 705, 706 [2011]).Nonetheless, viewing defense counsel's conduct in the context of the entire trial, weconclude that it was not pervasive or prejudicial, or so inflammatory as to deprive theplaintiffs of a fair trial (seeComa v City of New York, 97 AD3d 715, 716 [2012]; Jun Suk Seo v Walsh, 82AD3d 710, 710 [2011]; Bianco v Flushing Hosp. Med. Ctr., 79 AD3d 777, 779[2010]; cf. Grasso vKoslowe, 38 AD3d 599, 599 [2007]).
After concluding that a new trial was warranted on the basis of defense counsel'sconduct, the Supreme Court found it "impossible" to assess whether the damages awardwas contrary to the weight of the evidence, so it did not decide that branch of theplaintiffs' motion which was for a new trial on that basis. In this situation, and in theinterest of judicial economy, we address that branch of the plaintiffs' motion in the firstinstance (see Telsaint v City ofNew York, 120 AD3d 794, 796 [2014]; Cusumano v City of New York, 104 AD3d 639, 641[2013]).
A jury verdict should not be set aside as contrary to the weight of the evidence unlessthe jury could not have reached the verdict by any fair interpretation of the evidence(see Lolik v Big V Supermarkets, 86 NY2d 744, 745-746 [1995]; Nicastro v Park, 113 AD2d129, 130 [1985]). Upon our review of the record, we conclude that the jury's damagesaward was based on a fair interpretation of the evidence and, thus, was not contrary tothe weight of the evidence (seeSmith v Bywise Holding, LLC, 106 AD3d 902, 903 [2013]; Handwerker v Dominick L. Cervi,Inc., 57 AD3d 615, 615-616 [2008]). Mastro, J.P., Balkin, Chambers andMaltese, JJ., concur.