LIND v. TISHMAN CONSTRUCTION CORPORATION OF NEW YORK (2024)

Judgment, Supreme Court, New York County (Carol Sharpe, J.), entered January 19, 2023, after a jury verdict, awarding plaintiffs $460,000 for past pain and suffering, $230,000 for past lost earnings, $0 for future pain and suffering, and $0 for past and future loss of services, unanimously modified, on the facts, to vacate so much of the award as is for past loss of services and remand for a new trial on that issue only, unless the parties stipulate, within 30 days of service of a copy of this order with notice of entry, to increase the award for past loss of services to $40,000 and to entry of an amended judgment in accordance with the new award, and otherwise affirmed, without costs.

Plaintiffs failed to object to the verdict on the ground of inconsistency before the jury was discharged, thus waiving that argument (see Marquez v. 171 Tenants Corp., 220 A.D.3d 575, 576–577, 198 N.Y.S.3d 324 [1st Dept. 2023];  Hernandez v. Consolidated Edison Co. of N.Y., Inc., 198 A.D.3d 564, 565, 156 N.Y.S.3d 187 [1st Dept. 2021]).  Nevertheless, the waiver does not preclude review of the sufficiency of the awards (see Paucay v. D.P. Group Gen. Contrs./Devs., Inc., 187 A.D.3d 496, 497, 133 N.Y.S.3d 16 [1st Dept. 2020]).

Upon that review, we find no reason to disturb the jury's determination, arrived at upon a resolution of witness credibility issues and the conflicting testimony of experts, that although plaintiff Earl Lind, Jr. was injured in the accident, his subsequent multiple hip surgeries were necessitated by his avascular necrosis, a degenerative condition that predated the accident (see Araujo v. State of New York, 61 A.D.3d 585, 585–586, 877 N.Y.S.2d 315 [1st Dept. 2009];  Mejia v. JMM Audubon, 1 A.D.3d 261, 262, 767 N.Y.S.2d 427 [1st Dept. 2003]).  Similarly, the jury's award for economic damages reflected that finding.

However, the jury's award of $0 for past loss of services constituted a material deviation from what would be reasonable compensation.  Plaintiff wife testified that after the injured plaintiff's accident, she assumed full responsibility for household chores, cooking, and transportation for plaintiffs’ children, and also had to care for the injured plaintiff.  This testimony is sufficient to support an award for past loss of services (see e.g. Garcia v. Spira, 273 A.D.2d 57, 57, 709 N.Y.S.2d 53 [1st Dept. 2000] [$10,000 award where evidence showed that injured spouse had “diminished ability to do household chores” because of a fracture to her nondominant wrist];  Harris v. Moyer, 255 A.D.2d 890, 891, 680 N.Y.S.2d 351 [4th Dept. 1998] [$15,000 award for loss of consortium to decedent's estate where decedent assumed all of the duties of running the household, duties not undertaken by him before the accident]).

We have considered plaintiffs’ remaining arguments and find them unavailing.