| Vatalaro v County of Suffolk |
| 2018 NY Slip Op 05352 [163 AD3d 893] |
| July 18, 2018 |
| Appellate Division, Second Department |
[*1]
| Teresa Vatalaro, as Administratrix of the Estate of Jenna AllyseVatalaro, Deceased, Appellant-Respondent, v County of Suffolk et al.,Respondents-Appellants. |
Jordan & LeVerrier, P.C., East Hampton, NY (Conrad Jordan of counsel), forappellant-respondent.
Devitt Spellman Barrett, LLP, Smithtown, NY (John M. Denby of counsel), forrespondents-appellants.
In an action to recover damages for wrongful death, etc., the plaintiff appeals, and thedefendants cross-appeal, from an order of the Supreme Court, Suffolk County (Joseph Farneti,J.), dated March 4, 2016. The order, insofar as appealed from, (1) granted that branch of thedefendants' motion pursuant to CPLR 4404 (a) which was for a new trial on the issue of damagesfor pre-impact terror, unless the plaintiff agreed to a reduction in that award from the principalsum of $250,000 to the principal sum of $50,000, (2) granted that branch of the defendants'motion pursuant to CPLR 4404 (a) which was for a new trial on the issue of damages forconscious pain and suffering, unless the plaintiff agreed to a reduction in that award from theprincipal sum of $1,250,000 to the principal sum of $400,000, and (3) denied the plaintiff's crossmotion pursuant to CPLR 4404 (a) for an additur to the damages awarded for economic loss. Theorder, insofar as cross-appealed from, denied that branch of the defendants' motion pursuant toCPLR 4404 (a) which was for a new trial on the issue of damages for economic loss, or in thealternative, for a reduction of the damages awarded for economic loss.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costsor disbursements.
During the liability portion of a bifurcated wrongful death trial, the jury determined that thedefendants were solely at fault for the happening of a motor vehicle accident that caused thedeath of Jenna Alyse Vatalaro (hereinafter the decedent) (see Vatalaro v County ofSuffolk, 163 [*2]AD3d 891 [2018] [decided herewith]). After the ensuing damages trial, the jury awarded the plaintiffdamages in the principal sums of $250,000 for pre-impact terror, $1,250,000 for post-impactconscious pain and suffering, and $170,000 for economic loss.
The defendants moved pursuant to CPLR 4404 (a) to set aside the jury's verdict and for anew trial on the issue of damages, or, in the alternative, for a reduction of the damages awards.The plaintiff cross-moved pursuant to CPLR 4404 (a) for an additur to the damages award foreconomic loss. The Supreme Court granted that branch of the defendants' motion which was for anew trial on the issue of damages for pre-impact terror unless the plaintiff agreed to a reductionin that award from the principal sum of $250,000 to the principal sum of $50,000, granted thatbranch of the defendants' motion which was for a new trial on the issue of damages for consciouspain and suffering unless the plaintiff agreed to a reduction in that award from the principal sumof $1,250,000 to the principal sum of $400,000, and otherwise denied the motion and crossmotion. The plaintiff appeals and the defendants cross-appeal. We affirm.
"The amount of damages to be awarded to a plaintiff for personal injuries is a question forthe jury, and its determination will not be disturbed unless the award deviates materially fromwhat would be reasonable compensation" (Nayberg v Nassau County, 149 AD3d 761, 762 [2017] [internalquotation marks omitted]; see CPLR 5501 [c]; Graves v New York City Tr. Auth., 81 AD3d 589, 589 [2011]; Chery v Souffrant, 71 AD3d 715,716 [2010]). "The reasonableness of compensation must be measured against relevant precedentof comparable cases" (Halsey v NewYork City Tr. Auth., 114 AD3d 726, 727 [2014] [internal quotation marks omitted]; see Kayes v Liberati, 104 AD3d739, 741 [2013]). "Although prior damage awards in cases involving similar injuries are notbinding upon the courts, they guide and enlighten them with respect to determining whether averdict in a given case constitutes reasonable compensation" (Vainer v DiSalvo, 107 AD3d 697, 698-699 [2013] [internalquotation marks omitted]).
"Damages for pre-impact terror are designed to compensate the decedent's estate for the fearthe decedent experienced during the interval between the moment the decedent appreciated thedanger resulting in the decedent's death and the moment the decedent sustained a physical injuryas a result of the danger" (NY PJI 2:320, Caveat 3; see Vargas v Crown Container Co., Inc., 155 AD3d 989, 993[2017]). Here, the evidence at trial established that the decedent made eye contact with thedefendant bus operator, William R. Dortch, for approximately one second before the bus collidedwith the decedent's vehicle. Under these circumstances, we agree with the Supreme Court'sdeterminations that the $250,000 award for pre-impact terror deviated materially from whatwould be reasonable compensation and to grant the branch of the defendants' cross motion whichwas for a new trial on the issue of pre-impact terror unless the plaintiff agreed to an award in theprincipal sum of $50,000 (see Klos v New York City Tr. Auth., 240 AD2d 635, 638[1997]; Donofrio v Montalbano, 240 AD2d 617, 618 [1997]).
"A cause of action alleging conscious pain and suffering requires proof of cognitiveawareness for at least some period of time following an accident" (Keenan v Molloy, 137 AD3d 868,871 [2016] [internal quotation marks omitted]). "[I]n determining damages for conscious painand suffering experienced in the interval between injury and death, when the interval is relativelyshort, the degree of consciousness, severity of pain, apprehension of impending death, along withduration, are all elements to be considered" (Ramos v Shah, 293 AD2d 459, 460 [2002][internal quotation marks omitted]). Here, we agree with the Supreme Court's determination thatthe jury award in the principal sum of[*3]$1,250,000 deviatedmaterially from what would be reasonable compensation for the decedent's post-impactconscious pain and suffering. The evidence established that the decedent was able to feel painfollowing the collision, but that she was able to do so for, at most, 11 to 20 minutes and that,during that time, she was minimally conscious (see id. at 460). Under thesecircumstances, that branch of the defendants' motion which was for a new trial on the issue ofconscious pain and suffering unless the plaintiff agreed to an award in the principal sum of$400,000 was properly granted (seeEspinal v Vargas, 101 AD3d 1072, 1072-1073 [2012]; Glassman v City of NewYork, 225 AD2d 658, 659-660 [1996]; Portaro v Gerber, 217 AD2d 539, 540-541[1995]).
We agree with the Supreme Court's determination that the jury's award of damages in theprincipal sum of $170,000 for economic loss did not deviate materially from what would bereasonable compensation (see Vasquez vCounty of Nassau, 91 AD3d 855, 858-859 [2012]). Mastro, J.P., Cohen, Connolly andBrathwaite Nelson, JJ., concur. [Prior Case History: 2016 NY Slip Op 30496(U).]