Kyme v Pantuosco
2012 NY Slip Op 50984(U) [35 Misc 3d 1233(A)]
Decided on May 29, 2012
Supreme Court, Albany County
Lynch, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 29, 2012
Supreme Court, Albany County

James Kyme, Plaintiff,


Maria B. Pantuosco and Gregory S. Pantuosco, Defendants.



(Andrew W. Kirby, Esq., of Counsel)

Attorneys for Plaintiff

9 Cornell Road

Latham, New York 12110


(Edward B. Flink, Esq., of Counsel)

Attorneys for Defendant

449 New Karner Road

Albany, New York 12205

Michael C. Lynch, J.

Plaintiff commenced this action to recover damages for personal injuries sustained in an automobile accident on August 9, 2007.

By Decision and Orders (Lynch, J.) dated October 6, 2011 and November 3, 2011, the Court granted summary judgment in plaintiff's favor on the issue of liability and on the threshold issue of serious injury. Effectively, the court determined that plaintiff sustained a serious injury to his lower back in the accident, consisting of two herniated discs and resulting in spinal fusion surgery on July 2, 2008. The case proceeded to trial in November, 2011 on the question of damages. The jury returned a verdict in plaintiff's favor, awarding the following items of damages: [*2]

a. Past pain and suffering$20,000.00

b. Future pain and suffering

(for a period of 29 years)$15,000.00

c. Past loss of earnings$15,000.00

d. Future loss of earnings

(for a period of 13 years)$10,000.00

Total Verdict$60,000.00

By motion initially returnable January 20, 2012, plaintiff has challenged the damage award as entirely inadequate. He seeks an order pursuant to CPLR 4404(a) and 5501 (c), vacating the verdict as against the weight of the evidence and as materially deviating from reasonable compensation. Plaintiff seeks a new trial on damages, unless defendants stipulate to an increased award in each damage catetory listed above. Defendants oppose the application.

A jury's assessment of damages is accorded considerable deference but may be set aside when the award deviates materially from what would be reasonable compensation (see CPLR 5501[c]; Vogel v. Cichy, 53 AD3d 877; Beadleston v. American Tissue Corp., 41 AD3d 1074; Acton v. Nally, 38 AD3d 973). The governing standard is "whether the evidence on the whole so preponderates in favor of the [moving] party that the verdict could not have been reached on any fair interpretation of the evidence" (Santalucia v. County of Broome, 228 AD2d 895, 896). Giving due consideration to the nature of plaintiff's injuries, the Court also looks to comparable cases as a guide in measuring the reasonableness of the award (see Nolan v. Union Coll. Trust of Schenectady, NY, 51 AD3d 1253, 1256; app den. 11 NY3d 705; Hotaling v. CSX Transportation, 5 AD3d 964).

The determinative point in this case, as confirmed by the medical evidence, is that plaintiff sustained disc herniations at L 4-5 and L5-S1, as a result of this accident. In July, 2008, he underwent a multi-level spinal fusion surgery, including the insertion of steel rods and screws (see Exhibit "D"). The surgeon, Dr. Scheid, confirmed that the nerve roots in plaintiff's back, particularly the L5 nerve root were compressed — as depicted in plaintiff's Exhibit "C", which Dr. Scheid characterized as "remarkably accurate" (see Exhibit "F" at p. 9). Dr. Scheid also explained that plaintiff's lumbar spine range of motion has been permanently reduced by up to 20-25%. The surgery successfully addressed plaintiff's low back pain, but plaintiff has developed new right leg pain attributable [*3]to increased stress on the adjacent L3 disc, leaving open the prospect of future surgery (see Exhibit "F", pp. 29-30).

While defendants have endeavored to explain the award as a reflection of the jury's credibility assessment of plaintiff and both Dr. Scheid and Dr. Swicker, plaintiff's treating physician, credibility assessments do not account for the objective medical evidence of plaintiff's injuries. With due recognition that plaintiff had asymptomatic, advanced degenerative disc disease (see Kirschhoffer v. VanDyke, 173 AD2d 7, 9), an October 2007 MRI confirmed the existence of the disc herniations. During surgery, Dr. Scheid was able to verify that the nerves were actually compressed — objective confirmation of plaintiff's asserted pain. In an instance, as here, where defendant did not produce a medical expert and did not undermine the testimony of plaintiff's medical experts during cross-examination, the jury may not disregard the experts' opinion in rendering the damage award (see Vogel v. Cichy, supra., 53 AD3d at 880; Baker v. Shepard, 276 AD2d 873; Prescott v. LeBlanc, 247 AD2d 802).

Given the above, and comparing this award to damage awards in similar cases, the Court agrees with plaintiff that the pain and suffering awards, constitute a material deviation from reasonable compensation (see Valentin v. City of New York, 293 AD2d 313 [2002] [spinal fusion surgery followed by pain requiring prescription medications and nerve root injections with likelihood of further surgery; future pain and suffering award increased to $450,000]; Murry v. Witherel, 287 AD2d 926 [cervical spine surgery, with additional lumbar spine surgery expected; award of $25,000 for past pain and suffering inadequate] - and cases cited therein; Ramos v. New York City Transit Authority, 90 AD3d 492 [awards of $270,000 for past pain and suffering and $325,000 for future pain and suffering for 59 year old plaintiff who sustained multiple disc herniations in his lumbar spine and under a combined discectomy laminectomy and spinal fusion surgery which did not provide relief]. Not to be overlooked here is the fact that on summation, in discussing the pain and suffering awards, defense counsel suggested a range of $50,000 to $100,000 for past pain and suffering ( Exhibit "K" at p. 41). As such, a new trial on damages for both past and future pain and suffering is required.

The Court recognizes that plaintiff requests that the award for past pain and suffering be increased to $400,000, i.e. the same amount as in Valentin (see Plaintiff's Memorandum of Law at p. 12). As for the future pain and suffering, plaintiff seeks an increase in the award in line with a sequence of cases, including Valentin; Acton v. Nally (38 AD3d 973); and Beadleston v. American Tissue [*4]Corporation (41 AD3d 1074) — i.e. $450,000 (see Memorandum of Law pp. 14-17). In view of the nature and extent of plaintiff's injuries, including the fact he was able to work after the accident until his surgery and has been employed since January, 2009, and considering that the surgery was successful in relieving his back and left leg pain, the Court declines plaintiff's additur request. In other words, given the nuances of plaintiff's case, the Court believes a new trial is in order so that a jury is given the opportunity to determine the award for pain and suffering.

As for loss of earnings, the Court recognizes that plaintiff continued to work as an environmental technician into June, 2008, when he was laid off by his employer. The surgery was performed in July, 2008 and plaintiff convalesced over a six month period. Dr. Scheid testified that weight restrictions prevented plaintiff from returning to the type of work he performed as an environmental technician. Plaintiff was able to obtain employment as a van driver in January, 2009.

"An award for lost earnings is an objective assessment which plaintiff bears the burden of proving...and which must be established with reasonable certainty" (Petrilli v. Federated Dept. Stores, Inc., 40 AD3d 1339, [internal quotations and citations omitted]). While the Court recognizes that plaintiff was laid off by his employer, the medical evidence demonstrates that he cannot return to a labor intensive employment. In his current employment he has earned approximately one-third less than his salary as an environmental technician. Moreover, the back restrictions are permanent. The $15,000 past lost earnings award does not account for the six months post-surgery recovery period, and the three years of reduced wages that followed. Similarly, the $10,000 of future loss of earnings does not account for the thirteen years the jury found to be plaintiff's projected work life. Consequently, a new trial on damages for both past and future loss of earnings is in order; unless, defendant stipulates within 30 days after service of a copy of this Decision and Order, to an increase in the past loss of earnings to $45,000.00; and an increase in the future loss of earnings to $125,000.00.

Accordingly, plaintiff's motion is granted, the jury verdict is vacated and a new trial is ordered to determine an award of damages for past and future pain and suffering; and to determine an award of damages for past and future loss of earnings, unless defendant stipulates to an increase in the past and future loss of earnings as set forth above, without costs.

This memorandum represents the Decision and Order of this Court. The original Decision and Order is being mailed to the attorney for plaintiff. The [*5]original papers are being sent to the Albany County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220.

Counsel is not relieved from the provision of that rule regarding filing, entry, or notice of entry.

DATED:May, 2012

Albany, New York


Hon. Michael C. Lynch

Justice of the Supreme Court

Papers Considered:

1.Notice of Motion initially returnable January 20, 2012, with Affidavit of Andrew

W. Kirby, Esq. dated December 15, 2011, and Exhibits "A" - "O"; and Plaintiff's

Memorandum of Law dated December 15, 2011;

2.Affirmation of Edward B. Flink, Esq. dated April 6, 2012 with Exhibits "P" - "S";

Defendant's Memorandum of Law dated April 6, 2012; and

3.Reply Affirmation of Andrew W. Kirby, Esq. dated April 20, 2012 with Exhibits

"1" - "3"; Plaintiff's Reply Memorandum of Law dated April 20, 2012.