In this personal injury case, resulting from a three-car November 4, 2008 accident, on Ocean Parkway near its intersection with Avenue I, in Brooklyn, New York, plaintiff

Defendant DOVLATYAH cross-moves for an order, pursuant to CPLR Rule 4404 (a), to set aside the jury's damages award of $150,000 for past and suffering as excessive and unwarranted because plaintiff KHASIDY failed to sustain a "serious injury," pursuant to Insurance Law § 5102 (d), or in the alternative reducing the damages award to $50,000.

Defendant DOVLATYAH opposes plaintiff KHASIDY's motion and plaintiff KHASIDY opposes defendant DOVLATYAH's cross-motion. For the reasons following, the Court finds that the jury's damages award of $150,000 for past and suffering and $0 for future pain and suffering is consistent with and not against the weight of the credible evidence. The Court holds, based upon the facts of the instant action, that it must defer to the jury's interpretation of the evidence presented. Further, the Court did not err, at the conclusion of the presentation of evidence at trial, in granting defendant DOVLATYAH's motion to dismiss plaintiff KHASIDY's punitive damages claim.

On November 4, 2008, plaintiff KHASIDY was driving home from work on Ocean Parkway. He slowed down and came to a complete stop near the intersection with Avenue I because of a red signal. He stopped behind the vehicle of former defendants PINA ZYWICA and MICHAEL ZYWICA, who were dismissed from the instant action, prior to the trial, on a summary judgment motion. Plaintiff KHASIDY's vehicle, while stopped, was struck in the rear by defendant DOVLATYAH's vehicle. The force of impact caused plaintiff's vehicle to strike the ZYWICA vehicle in front of his vehicle.

The police who responded to the accident arrested defendant DOVLATYAH at the scene of the accident for violation of Vehicle and Traffic Law (VTL) § 1192 (3), driving while intoxicated. Defendant DOVLATYAH refused to take a breathalyzer test. Subsequently, he pled guilty to VTL § 1192.1, driving while impaired, a violation and not a crime. Further, two closed and corked half-empty brandy bottles were found by the police in defendant's hatchback car, one in the back and one between the front seats.

Plaintiff KHASIDY claimed to have sustained several herniated discs in the neck and lower back after suffering a whiplash injury in the subject accident. At the commencement of the trial, defendant DOVLATYAH conceded liability and the trial was for damages only. Further, defendant DOVLATYAH moved in limine to either preclude plaintiff KHASIDY from going forward on his punitive damages claim or bifurcating the punitive damages issue from the compensatory damages issues. After an extensive discussion with counsel, outside the presence of the jury, I allowed the case to go forward on plaintiff's punitive damages claim with the compensatory damages claims. I granted leave to defendant to move at the conclusion of the trial for dismissal of plaintiff's punitive damages claim if defendant believed that plaintiff failed to make a prima facie case on the punitive damages claim. At the conclusion of the trial, defendant moved for dismissal of plaintiff's punitive damages and I granted the motion as a matter of law, finding that plaintiff failed to present evidence that defendant's conduct rose to the level of reckless, wanton or gross negligence.

At trial, plaintiff KHASIDY testified. Plaintiff also presented as witnesses: his treating neurologist; an orthopaedist who examined plaintiff; and, another orthopaedist, who was subpoenaed because he was initially defendant's Independent Medical Examiner. The doctors opined that plaintiff sustained a permanent and serious injury as a result of the accident. Plaintiff also called defendant as a witness. Defendant admitted to "mistakes" in his deposition and to having several glasses of brandy prior to driving before the subject accident. Plaintiff also called as a witness the police officer who arrived at the accident scene to investigate. He arrested defendant for driving while intoxicated. Defendant presented a radiologist as a witness.

The jury found that plaintiff sustained a permanent injury and awarded plaintiff $150,000 for past pain and suffering. However, they awarded plaintiff nothing for future pain and suffering..

Plaintiff argues that: the jury's failure to award any damages for future pain and suffering should be vacated because it is contrary to the weight of the evidence and inconsistent; a new trial should be ordered because the $150,000 past pain and suffering award is inadequate and the Court should grant additur; and, the Court erred in dismissing plaintiff's punitive damages claim, because the issue of whether defendant acted with reckless disregard or gross negligence was a factual issue for the jury to decide.

Discussion

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

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]

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

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

In the instant action, the jury observed the witnesses, measured their credibility and

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, defendant, a police officer 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 damages award and grant additur or set aside the verdict as excessive or in the alternative reduce the damages award.

With respect to the Court's dismissal of plaintiff's claim for punitive damages, the Court of Appeals instructed in Marinaccio v Town of Clarence (20 NY3d 506, 511 [2013]):

the standard for imposing punitive damages is a strict one and punitive

damages will be awarded only in exceptional cases, the conduct justifying

such an award must manifest "spite or malice, or a fraudulent or evil

motive on the part of the defendant, or such a conscious and deliberate

disregard of the interests of others that the conduct may be called wilful

or wanton" (Dupree v Giugliano, 20 NY3d 921, 924 [2012] [citation

and internal quotation marks omitted]).

In automobile accident cases, "[w]ell-settled precedent instructs that intoxication alone does not open the door for punitive damages and that each situation must be considered on a case-by-case basis (citations omited)." (Trudeau v Cooke, 2 AD3d 1133, 1134 [3d Dept 2003]). (See Rodgers Duffy, 95 AD3d 864 [2d Dept 2012] Deon v Fortuna, 283 AD2d388 [2d Dept 2001] Boykin v Mora, 274 AD2d 441 [2d Dept 2000]).

In Rinaldo v Mashayeki (185 AD2d 435 [3d Dept 1992]), the Court affirmed a judgment for punitive damages because the evidence established defendant's wanton negligence and recklessness. Defendant was operating his motor vehicle with a blood alcohol level of .19%, more than twice today's legal limit and driving at an excessive speed on a street busy with Christmas shoppers.

In contrast, in the instant action, defendant pled to VTL § 1092.1, driving while impaired, a violation and not a crime. There was no evidence presented as to what defendant DOVLATYAH's blood alcohol level was at the time of the accident. The two

Accordingly, it is

ORDERED, that the motion of plaintiff DAVID KHASIDY, pursuant to CPLR

ORDERED, that the cross motion of defendant VARUZHAN DOVLATYAH, pursuant to CPLR Rule 4404 (a), to set aside the jury's damages award of $150,000 for past and suffering as excessive and unwarranted by the evidence in that plaintiff DAVID KHASIDY failed to sustain a "serious injury," pursuant to Insurance Law § 5102 (d), or in the alternative reducing the damages award to $50,000, is denied.