Recitation in accordance with CPLR 2219 (a) of the papers considered on Haim Yuzary's (hereinafter Yuzary or plaintiff) motion filed on August 20, 2013, under motion sequence number five, for an order pursuant to CPLR 4404 (a): (1) setting aside the jury's verdict on the issue of damages as against the weight of the evidence; (2) setting aside the jury's verdict based on inflammatory, improper and highly prejudicial comments of defense counsel; and (3) setting this matter down for a new trial.

- Notice of Motion

- Attorney Affirmation

- Exhibits A - O

- Affirmation in Opposition

- Exhibits A - B [*2]

- Reply Affirmation

BACKGROUND

On November 3, 2010, Yuzary commenced this action for damages for serious personal injuries sustained in a motor vehicle accident (hereinafter the subject accident) caused by the negligence of defendant Norma S. Hafif (hereinafter Hafif). By verified answer dated January 5, 2011, Hafif joined issue. Plaintiff's complaint and bill of particulars allege that on December 8, 2009, while his vehicle was stopped in traffic at Avenue P near East 17th Street in Brooklyn, New York, he was struck in the rear by a vehicle owned and operated by Hafif.

By notice of motion filed on January 28, 2011, under motion sequence number one, plaintiff sought an order granting summary judgment in his favor on the issue of liability pursuant to CPLR 3212.

By order dated March 10, 2011, Justice Schmidt granted summary judgment in favor of the plaintiff on the issue of liability pursuant to CPLR 3212. Thereafter, on or about June 4, 2013, a jury was selected and assigned to Part 52 for a trial on damages. On June 17, 2013, the jury returned a verdict in favor of the defendant finding that the plaintiff did not sustain a serious injury under either the 90/180-day, permanent consequential limitation of use or significant limitation of use category of Insurance Law § 5102 (d).

LAW AND APPLICATION

Plaintiff contends that based on the trial evidence submitted, the jury could not have found that plaintiff did not suffer a serious injury by any fair interpretation of the evidence. To set aside the verdict as against the weight of the evidence, the court must determine "whether the jury could have reached their conclusion upon any fair interpretation of the evidence" (Kennedy v New York City Health & Hosps., 300 AD2d 146, 147 [1st Dept 2002], quoting Bernstein v Red Apple Supermarkets, 227 AD2d 264, 265 [1st Dept 1996]). Furthermore, the court must conclude that the evidence so preponderated in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence ( Jun Suk Seo v Walsh, 82 AD3d 710, 711 [2nd Dept 2011]).

Plaintiff's Contentions

In the instant matter the plaintiff called Dr. McMahon and Dr. Rovner, both orthopedic surgeons, to establish that plaintiff suffered a serious physical injury under Insurance Law § 5102 (d). These doctors testified that the plaintiff had herniated discs or bulges at the L3-L4, L4-L5 & L5-S1 disc levels. Plaintiff also admitted an MRI report of his left shoulder which revealed a partial tear of the supraspinatus tendon, partial tear of the subscapularis tendon and partial separation of the anterior glenoid labrum with impingement. Plaintiff also admitted an MRI of his left knee which noted a tear through the posterior horn of the lateral and medial meniscus, as well as, fluid and swelling.

Plaintiff also admitted undisputed evidence that he underwent a series of treatments and surgeries on his left knee, left shoulder and a unilateral laminectomy and foraminotomy at the L3, L4, L5 and S1 levels. Plaintiff asserts that the evidence presented at trial clearly established that he suffered a serious injury causally related to the accident in accordance with Insurance Law § 5102 (d) and that the defendant had failed to refute those claims with any competent medical evidence.

Defendants Contention

Defendant contends that the defense witnesses and evidence presented was sufficient for the jury to determine that the plaintiff did not suffer a serious physical injury caused by the subject accident. The defendant testified and produced four witnesses. He produced the police officer who responded to the subject accident, Raymond Hagemann, a mechanical engineer, and two medical experts, Dr. Anat, a neurologist and Dr. Winn a radiologist.

Hagemann opined that based on the speed, force and impact of the vehicles the accident must have occurred at no greater speed than 2.5 mph. The defendant testified that there was no damage to plaintiff's vehicles and the accident occurred at a very low rate of speed. The defendant argues that these facts alone support the jury's fair interpretation of the evidence that the subject accident did not cause plaintiff's injuries.

Defendant's medical experts did not dispute that plaintiff had physical injuries to his spine, left knee and shoulder, rather they opined that the injuries were not caused by this subject accident. They opined that the anomalies were degenerative conditions unrelated to the accident. Specifically, Dr. Winn testified that plaintiff exhibited osteophytes and osteoarthritis on the MRI films of the left shoulder, left knee and lumbar spine, which are manifestations of arthritis rather than a traumatic injury. Further, Dr. Anat testified that the lumbar spine films did not show any evidence of acute injury in the lumbar spine. "It is well settled that where the verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted" (see Bertelle v New York City Transit Authority, 19 AD3d 343, 344 [2nd 2005]). Furthermore, "the jury's assessment of credibility of experts who provided conflicting testimony at trial is entitled to great weight, as it is the jury that had the opportunity to observe and hear the experts. Where, as here, conflicting expert testimony is presented, the jury is entitled to accept one expert's opinion and reject that of another expert. Here, the jury was free to credit the testimony of the defendants' expert witnesses over that of the plaintiff's experts" (see Hatzis v Buchbinder, 112 AD3d 890 [2nd Dept 2013]).

Defendant further contended that the jury could properly reject the opinion of Dr. McMahon and Dr. Rovner, that the subject accident caused plaintiff's injuries because their opinions were based in part on the incomplete medical history that plaintiff provided them. Plaintiff did not disclose his extensive medical history including traumatic injuries caused by a prior accident to his doctors or the doctors hired by the defendants to exam him. When confronted with the failure to disclose his medical history of prior injuries, plaintiff claimed that he misunderstood what the doctors were asking for. He further stated that he did not like to remember that part of his life that was effected by the prior accident.

The defendant also contends that plaintiff's testimony, both during his examination before trial and the trial regarding facts and details of his prior criminal conviction of filing false statements with the United States Government, in conjunction with numerous instances where defense counsel impeached plaintiff on details of prior accidents and injuries, had permitted the jury to disregard plaintiff's entire testimony. As an example, on cross examination, plaintiff testified about a prior accident in which he was involved as a pedestrian. That accident caused him to be in a coma for fourteen days among other injuries. However, defense counsel elicited that the plaintiff omitted this significant medical history from his treating physicians. While [*3]defendant's testifying expert witness, Dr. Ashok Anant did note restrictions and impairments, he also found that plaintiff was exaggerating his subjective complaints. When Dr. Anant was advised of the prior pedestrian knockdown accident, he opined that the findings during the independent medical examination and the findings on the MRI films, which he reviewed, were consistent with significant pre-existing injuries and degeneration rather than traumatic injury caused by the instant accident. Plaintiff's testimony on cross examination also revealed that he had subjective complaints stemming from the prior accident up until six months before the accident which is the subject of this litigation. It is for the jury to make determinations as to the credibility of witnesses, and great deference in this regard is accorded to the jury, which had the opportunity to see and hear the witnesses (Mitchell v Wu,38 AD3d 507 [2nd Dept 2007]).

The Court instructed the jury with the standard charge of falsus in uno. The charge provides:

If you find that any witness has wilfully testified falsely as to any material fact, that is as to an important matter, the law permits you to disregard completely the entire testimony of that witness upon the principle that one who testifies falsely about one material fact is likely to testify falsely about everything. You are not required, however, to consider such a witness as totally "unbelievable." You may accept so much of his or her testimony as you deem true and disregard what you feel is false. By the processes which I have just described to you, you, as the sole judges of the facts, decide which of the witnesses you will believe, what portion of their testimony you accept and what weight you will give to it.

As the charge outlines, the jury was entitled to disregard the plaintiff's entire testimony if they found that he testified falsely about one material fact. In light of the numerous inconsistencies pointed out by defense counsel, the jury was entitled to disregard plaintiff's testimony in regards to his treatment and complaints. Accordingly, the jury's verdict that the plaintiff did not suffer a serious injury caused by the subject accident is based on a fair interpretation of the evidence.

Plaintiff also seeks to set aside the verdict based on prejudicial comments by defense counsel, based on certain personal characterizations of the plaintiff as untruthful and for referring to one of plaintiff's experts as a "hired gun." "When misconduct of counsel in summation so violates the rights of the other party to the litigation that extraneous matters beyond the proper scope of the trial may have substantially influenced or been determinative of the outcome, such breaches of the rules will not be condoned" (Steidel v County of Nassau, 182 AD2d 809 [2nd Dept 1992][internal citations omitted]).

Contrary to the plaintiff's contention defense counsel's summation comments were not so inflammatory or prejudicial as to deprive the plaintiff of a fair trial ( Jun Suk Seo v Walsh, 82 AD3d 710 [2nd Dept 2011] ( cf. McArdle v Hurley, 51 AD3d 741 [2nd Dept 2008] Vassura v Taylor, 117 AD2d 798 [2nd Dept 1986]). The reference to the expert as a "hired gun" was a single instance and was not elucidated upon by counsel. In order to warrant a mistrial, an ad hominem attack must be extreme and pervasive (Selzer v New York City Transit Authority, 100 AD3d 157, 164 [1st Dept 2012]). Furthermore, the comments about the plaintiff's truthfulness and the reference to a number of inconsistences within plaintiff's testimony were fair comment [*4]based on trial evidence.

CONCLUSION

The plaintiff's motion for an order pursuant to CPLR 4404 (a) setting aside the jury's verdict on the issue of damages and ordering a new trial is denied.

The foregoing constitutes the decision and order of this Court.

Enter:

J.S.C.