Plaintiff MICHAEL SARCONA (SARCONA) moves, in this bifurcated personal injury action, pursuant to CPLR Rule 4404 (a), to: set aside the September 27, 2012-jury verdict on liability, which found defendant NEW YORK CITY TRANSIT AUTHORITY (NYCTA) and plaintiff SARCONA each 50% responsible for the accident which occurred on September 15, 2008, as contrary to the weight of the evidence; and, grant additur of $2,000,000, for a total damages award of $5,000,000 for plaintiff's past and future pain and suffering, because the amounts awarded to plaintiff SARCONA were inadequate, given that the trial evidence weighed so heavily in favor of plaintiff that the verdict could not have been reached on any fair interpretation of the evidence.

Defendant NYCTA opposes the motion, arguing that: the jury's liability determination is [*2]not against the weight of the evidence; and, additur is not appropriate, given that the damages award is a question of fact for the jury, for which the Court must give considerable deference to the jury's interpretation of the evidence presented.

For the reasons to be explained, the Court finds that the jury verdict on liability in the instant action is not contrary to the weight of the evidence and with respect to the $3,000,000 jury award for damages ($1,500,000 for past pain and suffering and $1,500,000 for future pain and suffering), the Court defers to the jury's interpretation of the evidence presented and denies additur.

On September 15, 2008, plaintiff SARCONA, a 53-year old man who is legally blind due to retinitis pigmentosa and relies upon a cane for mobility, fell through a missing portion of a stairwell at defendant NYCTA's Avenue N station on the F line in Brooklyn, while exiting from the station. This is an elevated station and plaintiff fell about 30 feet below to McDonald Avenue. Plaintiff claimed that defendant was negligent by creating a hazardous condition which was not adequately barricaded and/or guarded to prevent access to the stairwell. Defendant claimed that the stairwell, which was being repaired, was adequately barricaded and for plaintiff to have proceeded down the stairs he would have had to either climb over the barricade and/or removed it himself.

In an approximately four week bifurcated trial, the jury found both defendant NYCTA and plaintiff SARCONA each 50% responsible for the September 15, 2008-subject accident. In the damages phase of the trial, plaintiff presented evidence that he had sustained: compound fractures of the right wrist necessitating two surgeries, including an open reduction, internal fixation; a fractured hip which necessitated an open reduction, internal fixation; a comminuted calcaneal fracture of his left heel, requiring future surgery; disfiguring surgical scarring; a fractured sacral alar; multiple facial fractures; and, post traumatic stress disorder (PTSD). The jury returned a damages verdict of $3,048,000 ($1,500,000 for past pain and suffering, $1,500,000 for future pain and suffering over a period of 20 years and $48,000 for future medical expenses over a period of 7 years).

In the liability phase of the trial, plaintiff, in addition to himself, had as witnesses: an expert opthamologist; an expert in the field of low vision therapy and orientation and mobility for the visually impaired; an eyewitness who was on McDonald Avenue when plaintiff fell to the street; and, an expert engineer who had worked in the past for defendant NYCTA in removing and replacing stairwells. Defendant produced several witnesses who were responsible for erecting the barriers, removing and replacing the stairs or supervising the work. None of defendant's witnesses had any independent recollection of performing this work at the Avenue N station, but testified based upon NYCTA records and defendant's custom and practice.

In the damages phase of the trial, plaintiff, in addition to himself, presented as witnesses: an expert in biomechanical engineering who testified about how plaintiff sustained his injury from his fall; his treating orthopaedic surgeon, who described his treatment of plaintiff and the permanency of his injuries; an expert psychiatrist who testified about plaintiff's PTSD as a result of the subject accident; and, the expert on low vision therapy and orientation and mobility for the visually impaired, who had also testified in the liability phase. Defendant presented an expert orthopaedist as a witness, who conceded that plaintiff had permanent injuries and would require [*3]future surgery to his wrist, hip and ankle/heel.

Plaintiff argues that the jury's liability verdict of plaintiff being 50% responsible for the subject accident could not have been reached upon any fair interpretation of the evidence by the jury. With respect to the damages award of $3,000,000 for pain and suffering, plaintiff presents jury verdicts and settlements in similar specific cases to argue the insufficiency of the jury's award of damages and the need for $2,000,000 in additur.

Defendant argues that the jury heard from all parties in the accident and weighed the credibility of the witnesses. Therefore, it was proper for the jury to have made its apportionment of liability of 50% to each party. Further, with respect to damages, defendant presents cases other than those presented by plaintiff, to argue the sufficiency of the damages award and the need for the Court to give deference to the jury's interpretation of the evidence and its weighing of the demeanor and testimony of all witnesses.

The power of the court to set aside a jury verdict and order a new trial is

discretionary. It is codified in CPLR Rule 4404 (a), which states:

Motion after trial where jury required. After a trial of a cause

of action or issue triable of right by a jury, upon the motion of any party

or on its own initiative, the court may set aside a verdict or any judgment

entered thereon and direct that judgment be entered in favor of a party

entitled to judgment as a matter of law or it may order a new trial of a

cause of action or separable issue where the verdict is contrary to the

weight of the evidence, in the interest of justice or where the jury

cannot agree after being kept together for as long as is deemed

reasonable by the court.

This broad power is invoked only when the jury verdict is against the weight of the

The fact that determination of a motion to set aside a verdict

involves judicial discretion does not imply, however, that the trial

court can freely interfere with any verdict that is unsatisfactory or with

which it disagrees. A preeminent principle of jurisprudence in this

area is that the discretionary power to set aside a jury verdict and

order a new trial must be exercised with considerable caution, for in [*4]

the absence of indications that substantial justice has not been done,

a successful litigant is entitled to the benefits of a favorable jury verdict.

Fact-finding is the province of the jury, not the trial court, and a court

must act warily lest overzealous enforcement of its duty to oversee the

proper administration of justice leads it to overstep its bounds and

"unnecessarily interfere with the fact-finding function of the jury to a

degree that amounts to an usurpation of the jury's duty" [citations

omitted]. This is especially true if a verdict is contested solely on

weight of the evidence grounds and interest of justice factors have

not intervened to flavor the judicial response to the motion. Absent

such complications, the challenge is directed squarely at the accuracy

of the jury's fact-finding and must be viewed in that light. [Emphasis

added]

(See Matter of State v Edison G., 107 AD3d 723, 724 [2d Dept 2013] Felicia v Boro Crescent Corp., 105 AD3d 697, 698 [2d Dept 2013] Caliendo v Ellington, 104 AD3d 635, 636-637 [2d Dept 2013] Loprieto v Scotti, 101 AD3d 829, 829-830 [2d Dept 2012] Daniels v Sims, 99 AD3d 658, 659 [2d Dept 2012] Bergamo v Verizon N.Y, Inc., 95 AD3d 916, 917 [2d Dept 2012]).

Further, the Court is mindful of the admonition in Shaw v Board of Educ. of City of New York (5 AD3d 468 [2d Dept 2004]), that a "jury verdict is entitled to great deference and should be set aside as against the weight of the evidence only when it could not have been reached on any fair interpretation of the evidence." (See Schwartz v Nagori, 115

AD3d 733, 734[2d Dept 2014] Hatzis v Buchbinder, 112 AD3d 890 [2d Dept 2013] Wallace v City of New York, 108 AD3d 760, 761 [2d Dept 2013] Doran v McNulty, 107 AD3d 843, 844 [2d Dept 2013] Soto v Elmback Owners, LLC, 106 AD3d 986 [2d Dept 2013] Delva v New York City Transit Authority, 85 AD3d 712 [2d Dept 2011]). Moreover, "[i]t is well settled that a jury verdict should not be set aside where to do interferes with the fact finding function of the jury (see Durante v Frishling, 81 AD2d 631 [2d Dept 1981])." (Bivona v Port Authority of New York and New Jersey, 118 AD2d 747, 748 [2d Dept 1986]).

In Hernandez v Carter and Parr Mobile, Inc. (224 AD2d 586, 587 [2d Dept

1996]), the Court instructed that "[i]t is beyond cavil that the determination of the jury which observed the witnesses and the evidence is entitled to great deference. We find that the jury's determination in favor of the defendant was based upon a fair interpretation of the evidence and we reject the plaintiffs' contention that the verdict is against the weight of the evidence." (See Wallace v City of New York, supra; Das v Costco Wholesale Corp., 98 AD3d 712, 712 [2d Dept 2012] Gaudiello v City of New York, 80 AD3d 726 [2d Dept 2011] Delva v New York City [*5]Transit Authority, supra).

In the instant action, the jury observed the witnesses, measured their credibility and weighed the evidence. The Court finds that the jury has a rational basis for its verdict and cannot find any reason to set aside the jury's liability verdict and increase the damages

award to plaintiff.

Plaintiff's counsel correctly argues that a trial court has the power to review whether a jury's award for damages is inadequate, and has the duty to set it aside if it materially deviates from what would be reasonable. However, the amount of a jury's award for damages is primarily a question of fact for the jury. In Schare v Welsbach Electric Corporation (138 AD3d 477 [2d Dept 1988]), the trial judge set aside as inadequate a jury award of $65,000 for pain and suffering in a pedestrian knockdown case, and ordered a new trial on damages unless defendant Welsbach stipulated to the entry of a $125,000 judgment for plaintiff. The Appellate Division in reversing the trial judge, held at 478, that, "[i]t is well settled that the amount of damages to be awarded for personal injuries is primarily a question of fact for the jury (see, Jandt v Abele, 116 AD2d 699 [2d Dept 1986] Senko v Fonda, 53 AD2d 638 [2d Dept 1976])."

In the instant case, the jury listened to the testimony of plaintiff and expert witnesses for both sides, weighed their demeanor and credibility, and evaluated the evidence. As in Sorokin v Food Fair Stores, Inc. (51 AD2d 592, 593 [2d Dept 1976]), "[t]he credibility of the witnesses, the truthfulness and accuracy of the testimony, whether contradicted or not, and the significance of weaknesses and discrepancies are all issues for the trier of the facts." The jury in the instant action performed its function and "properly considered the conflicting testimony of the witnesses and made its determination, which was not against the weight of the evidence." (Gagliardi v Madden, 207 AD2d 478 [2d Dept 1994]). Therefore, the Court cannot set aside the liaiblity verdict and grant additur.

Accordingly, it is

ORDERED, that the motion of plaintiff MICHAEL SARCONA, pursuant to

This constitutes the Decision and Order of the Court.

ENTER

________________________________

HON. ARTHUR M. SCHACK [*6]

J. S. C.