A jury verdict in favor of plaintiff was rendered on March 16, 2007, and upon application by defendant, this Court declined to set aside the verdict and order a new trial. CPLR §4404(a). However, pursuant to CPLR §4406, defendant is permitted to make a written motion to vacate the verdict. The motion is denied.

The jury found that as a result of an accident plaintiff sustained (i) loss of earnings during the three years following the accident of $73,848, at the rate of $2051.33 per month; (ii) loss of earnings for the period beginning three years after the accident and ending on the date of the verdict of $40,553; (iii) loss of future earnings of $694,899 over a period of thirty and three quarter years (30 3/4); (iv) medical expenses of $67,000 up to the date of the accident (future medical expenses were not requested); (v) past pain and suffering of $250,000 (vi) future pain and suffering of $275,000. Awards were made for loss of services to plaintiff's spouse, which are not contested by this motion.

The jury found that plaintiff satisfied the 90/180 day threshold requirement and a significant limitation of use of her thoracic spine, however, it also found that plaintiff did not sustain a permanent consequential limitation of use of her thoracic spine or limitations with respect to both of her knees and shoulders, although she offered evidence of injuries to those areas and separate questions were asked as to each such body part.

Defendant now moves pursuant to CPLR §4404 to set aside the jury awards for pain and suffering and lost earnings as being against the weight of the evidence and excessive. Defendant also argues that because the jury did not find in favor of the plaintiff as to any [*2][*3]permanent consequential injuries, it was inconsistent to award damages for future pain and suffering and future lost wages.

First, the defendant's contention that without a finding of permanence, future damages cannot be awarded is in error. Once a prima facie case of serious injury has been established and the trier of fact determines that a serious injury has been sustained, plaintiff is entitled to recover for all injuries incurred as a result of the accident. Rizzo v. DeSimone, 6 AD3d 600, 601 (2 Dept. 2004); see Gallagher v. Samples, 6 AD3d 659 (2d Dept 2004); Deyo v. Laidlaw Tr., 285 AD2d 853 (2d Dept. 2001); Bebry v. Farkas-Gallindez, 276 AD2d 656 (2d Dept. 2000). Accordingly, plaintiff was not foreclosed from recovering damages for future pain and suffering on the ground that she did not sustain a serious injury under certain of the significant limitation or all of the permanent consequential injury categories. In fact, a finding under the 90/180 catagory alone would be sufficient. Obdulio v. Fabian, 33 AD3d 418 (1st Dept. 2006). The finding by the jury of a significant limitation does not necessarily mean that the jury also found that the injury was nonpermanent and a finding that plaintiff sustained an injury within any of the statutory catagories of "serious injury" permits a plaintiff to recover any damages proximately caused by the accident. Preston v. Young, 239 AD2d 729, 731-732 (3d Dept. 1997).

Further, plaintiff's claim for future lost wages was adequately supported by the testimony of an economist, who testified in sufficient detail to support the award for lost earnings. Defendant chose not to rebut this testimony but rather argued that the injuries did not justify a complete cessation of ability to work. Thus, the jury having accepted the premise of inability to work, the actual calculations of lost earnings were unchallenged. In any event, based on the assumption that this 29 year old plaintiff would never be able to work again, the calculations and projections made by the economist were conservative and rational.

If a verdict for a plaintiff is based on a fair interpretation of the evidence, it should not be set aside as being against the weight of the evidence. Brosnam v. Pratt, 37 AD3d 388 (2d Dept. 2006). This Court may set aside a jury's award of damages if it materially deviates from what would be reasonable compensation. Inya v. Ide Hyundai, Inc., 209 AD2d 1015 (4th Dept. 1994). However, the exercise of such discretion should be employed sparingly. Shurgen v. Tedesco, 179 AD2d 805 (2d Dept. 1992). It is well settled that the amount of damages to be awarded for personal injuries is primarily a question for the jury, and great deference is given to its interpretation of the evidence and findings of fact, provided there is sufficient credible evidence to support the findings. Vasquez v. Jacobowitz, 284 AD2d 326 (2d Dept. 2001). Here, the jury could have reached its conclusion upon a fair interpretation of the evidence. Kennedy v. New York City Health and Hospital Corp., 300 AD2d 146 (1st Dept. 2002).

CPLR §4404(a) provides in relevant part that a court may set aside a verdict "in the interest of justice" or "where the verdict is contrary to the weight of the evidence". This discretionary power to set aside a jury verdict and order a new trial also must be exercised with a great deal of caution. The task of determining fault is designed to fall on the jury, and [*4][*5]this Court is wary of substituting its judgment for that of the fact finders, Kinney v. Leiboff, 294 AD2d 335 (2d Dept.); Nicastro v. Park, 113 AD2d 129 (2d Dept. 1985). Even where a verdict is in the upper range for comparable injuries, the inherently factual finding of damages for pain and suffering is generally left to a jury's common sense and judgment in light of its common knowledge and experience, and with due regard to the evidence at trial. Apuzzo v. Ferguson, 20 AD3d 647 (3d Dept. 2005).

The testimony of damages and injuries to both of plaintiff's knees and shoulders, as well as her thoracic spine, placed ample evidence before the jury of plaintiff's numerous infirmities and it would be inappropriate to simply focus on prior decisions, as submitted by defendant, dealing only with damages for neck and back injuries. See Gehrer v. Eisner, 19 AD3d 851 (3d Dept. 2005); Van Nostrand v. Froehlich, 18 AD3d 539 (2d Dept. 2005); Donatiello v. City of New York, 301 AD2d 436 (1st Dept. 2003); Cromas v. Kosher Plaza Supermarket, Inc., 300 AD2d 273 (2d Dept. 2002).

A new trial should not be granted "in the interest of justice" unless there is evidence that substantial justice has not been done. Gomez vs. Park Donuts, Inc. 249 AD2d 266 (2nd Dept. 1998). "The trial judge must decide whether substantial justice has been done, whether it is likely that the verdict has been affected and must look to [his/her] own common sense, experience and sense of fairness rather than to precedents in arriving at a decision." Micallef vs. Miehle Co., 39 NY2d 376, 381 (1976).

The Court of Appeals has held that on a motion to set aside a jury's verdict as against the weight of evidence, the correct standard is whether the evidence "so preponderated in favor of the other side that the verdict could not have been reached on any fair interpretation of the evidence." Lolik vs. Big V Supermarkets, Inc., 86 NY2d 744, 746 (1995), Voiclis vs. International Association of Machinist and Aerospace Workers, 239 AD2d 339 (2nd Dept. 1997). A verdict would not be against the weight of the evidence "unless it is palpably wrong and there is no fair interpretation of the evidence to support the jury's conclusion." Sperduti v. Mezger, 283 AD2d 1018 (4th Dept. 2001).

The awards here are not based on speculation, and there is ample proof in the record of the injuries sustained to plaintiff's back, legs and shoulders. O'Donnell v. Blanaru, 33 AD3d 776 (2d Dept. 2006). Plaintiff herself, and her husband as well, testified at great length as to her pain and discomfort emanating from her shoulders, knees and back, as well as her four surgical procedures to her shoulders and knees and inability to work and pursue many of the ordinary functions of daily life. This testimony found medical support in the testimony of Dr. Labiak, Dr. Glass and as to lost wages of Dr. Leikin Phd.

Having instructed the jury that once they found the existence of a threshold injury they may consider all of plaintiff's injuries and damages that flow from the accident, it would be inappropriate now to focus disproportionate attention upon injuries related solely to those satisfying the serious injury threshold. Finally, modification of damages cannot be based on case precedent alone because comparison of injuries is virtually impossible and it is the jury whose particular function is fixation of damages. So v. Wing Tat Realty, Inc. 259 AD2d 373 [*6][*7](1st Dept. 1999).

Defendant had ample opportunity to present its contradictory evidence to the jury including medical testimony and surveillance video. The jury's assessment of all the evidence is reflected in the verdict which this Court chooses to leave intact and undisturbed.

This shall constitute the Decision and Order of this Court

E N T E R

DATED: May 16, 2007

_____________________________

HON. DANIEL PALMIERI

Acting Supreme Court Justice

TO: