| Gorokhova v Consolidated Edison of N.Y., Inc. |
| 2020 NY Slip Op 04828 [186 AD3d 1201] |
| September 2, 2020 |
| Appellate Division, Second Department |
[*1]
| Lina Gorokhova, Respondent, v Consolidated Edison ofNew York, Inc., et al., Appellants. |
Nadine Rivellese (Heidell, Pittoni, Murphy & Bach, LLP, New York, NY [Daniel S.Ratner], of counsel), for appellants.
Wingate, Russotti, Shapiro & Halperin, LLP, New York, NY (I. Bryce Moses and DavidM. Schwarz of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from (1) ajudgment of the Supreme Court, Kings County (Loren Baily-Schiffman, J.), entered June 14,2017, and (2) an order of the same court entered November 13, 2017. The judgment, upon a juryverdict on the issue of damages awarding the plaintiff the principal sums of $1,500,000 for pastpain and suffering and $4,000,000 for future pain and suffering over a 29-year period, is in favorof the plaintiff and against the defendants in the total sum of $8,351,924.06. The order, insofar asappealed from, denied that branch of the defendants' motion which was pursuant to CPLR 5015(a) (3) to vacate the judgment and for a new trial.
Ordered that the judgment is reversed, on the law, and the matter is remitted to the SupremeCourt, Kings County, for a new trial on the issue of damages; and it is further,
Ordered that the appeal from the order is dismissed as academic in light of our determinationon the appeal from the judgment; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The plaintiff commenced this action to recover damages for personal injuries she allegedlysustained on December 3, 2010, when her vehicle was struck from behind by a vehicle driven bythe defendant Joseph D. Blasi and owned by the defendant Consolidated Edison Company ofNew York, Inc. (hereinafter Con Ed). The plaintiff was awarded summary judgment on the issueof liability, and the action proceeded to a trial on the issue of damages. The jury returned averdict awarding the plaintiff the sums of $1,500,000 for past pain and suffering and $4,000,000for future pain and suffering over a 29-year period.
On appeal, the defendants contend, inter alia, that the verdict and judgment must be set asideon the ground that they were deprived of a fair trial by the Supreme Court's improper juryinstruction on the law. Specifically, the defendants contend that the court erroneously charged thejury with respect to the burden of proof.
"A trial court is required to state the law relevant to the particular facts in issue, and a set ofinstructions that confuses or incompletely conveys the germane legal principles to be applied in acase requires a new trial" (J.R. Loftus, Inc. v White, 85 NY2d 874, 876 [1995]).
Here, we agree with the defendants that under the facts of this case, the Supreme Court'sdetermination to charge Pattern Jury Instructions 1:60 was improper in the context of a triallimited to the issue of damages only and was prejudicial to the defendants in that it shifted theburden of proof. In light of the court's error in the charge, substantial justice was not done sincethe jury was not instructed with the germane legal principles to be applied (see J.R. Loftus,Inc. v White, 85 NY2d at 876). Accordingly, we remit the matter to the Supreme Court,Kings County, for a new trial on the issue of damages.
In light of our determination, we dismiss the appeal from the order as academic, and we neednot reach the defendants' remaining contentions. Scheinkman, P.J., Roman, Hinds-Radix andLaSalle, JJ., concur.