THERESA LAMPHRON READ PLAINTIFF RESPONDENT v. DAVIS MONTGOMERY AND DESMOND MONTGOMERY DEFENDANTS APPELLANTS (2017)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Plaintiff commenced this action to recover damages for injuries that she sustained when her motor vehicle was struck head-on by a vehicle owned by defendant Davis Montgomery and driven by defendant Desmond J. Montgomery.  The issue of liability was resolved by Supreme Court in favor of plaintiff, and a jury trial on the issue of damages was conducted.  The jury awarded plaintiff $25,000 for past pain and suffering, but made no award for future pain and suffering.

We conclude that the court properly granted plaintiff's motion pursuant to CPLR 4404(a) to set aside the verdict with respect to damages as against the weight of the evidence.  Plaintiff sustained fractures of the transverse processes of her thoracic spine at vertebrae T–5 to T–9, an L–1 left-sided transverse process fracture of her lumbar spine, and a C–4 vertebral fracture of her cervical spine.  It is undisputed that plaintiff was in significant pain as a result of her injuries, was hospitalized for a week, and was unable to perform most daily activities without assistance for a couple weeks after her return home (see e.g. Simmons v. Dendis Constr., 270 A.D.2d 919, 920).  Plaintiff was required to wear a cervical collar brace and a Thoracic–Lumbar–Sacral Orthosis (TLSO) for three months (see e.g. Stewart v Manhattan & Bronx Surface Tr. Operating Auth., 60 AD3d 445, 446;  Pares v. LaPrade [appeal No. 2], 266 A.D.2d 852, 853), and those devices immobilized plaintiff “[a]s much as [one could] be without any type of surgery” (see e.g. Bouzas v. Kosher Deluxe Rest., 83 AD3d 538, 538).  Plaintiff was unable to walk, sit, or stand for prolonged periods without aggravating her back pain (see e.g. Deyo v. Laidlaw Tr., 285 A.D.2d 853, 854;  Diglio v. Gray Dorchester Assoc., 255 A.D.2d 911, 912;  Wroblewski v National Fuel Gas Distrib.  Corp., 247 A.D.2d 917, 917).  Even routine actions, such as carrying groceries or mowing the lawn, caused her pain and required her to stop and rest (see e.g. Wroblewski, 247 A.D.2d at 917).  Plaintiff's ability to engage in home improvement projects, recreational activities, and long-distance visits with her family has been curtailed (see e.g. Barrow v. Dubois, 82 AD3d 1685, 1687;  Palmer v. CSX Transp., Inc. [appeal No. 2], 68 AD3d 1626, 1627;  Simmons, 270 A.D.2d at 920;  Diglio, 255 A.D.2d at 912), and her pain has also interfered with her ability to sleep (see e.g. Barrow, 82 AD3d at 1687).

Plaintiff's independent medical examiner, a board certified orthopedic surgeon, testified that plaintiff's neck and lower back pain had subsided and no longer required treatment.  It was uncontroverted, however, that plaintiff's thoracic spine fractures caused permanent paraspinal muscular injuries, resulting in chronic activity-related back pain for which there was no available remedy (see e.g. Simmons, 270 A.D.2d at 920;  Scott v. Yurkewecz, 234 A.D.2d 673, 675;  see generally Inzinna v. Brinker Rest. Corp. [appeal No. 2], 302 A.D.2d 967, 968).  The orthopedic surgeon also testified that plaintiff's subjective descriptions of pain were consistent with her injuries (see e.g. Wroblewski, 247 A.D.2d at 918), and that the type of compressive force necessary to cause her multiple fractures had to have been “significant.”  We note that, although plaintiff was examined by a physician chosen by the defense, defendants did not present the testimony of that physician or any other medical expert (see e.g. Beckwith v. Rute, 235 A.D.2d 892, 894).

In light of the uncontroverted evidence that plaintiff suffered substantial pain from seven vertebral fractures, was temporarily immobilized, has continued to suffer pain from daily activities, and has been limited in her enjoyment of recreational activities, we conclude that the award of $25,000 for plaintiff's past pain and suffering “is inadequate and could not have been reached upon any fair interpretation of the evidence” (Inzinna, 302 A.D.2d at 968).  Moreover, given the uncontroverted medical testimony that plaintiff continues to suffer from permanent and chronic activity-related pain that is causally related to this motor vehicle accident, the failure to award damages for plaintiff's future pain and suffering is also against the weight of the evidence (see Inzinna, 302 A.D.2d at 968;  Scott, 234 A.D.2d at 675;  see generally Lolik v. Big v. Supermarkets, 86 N.Y.2d 744, 746).  We further conclude that the court properly determined in the alternative that the award of $25,000 for plaintiff's past pain and suffering and the failure to award any damages for future pain and suffering deviates materially from what would be reasonable compensation (see Barrow, 82 AD3d at 1686–1687;  Grigoli v. Passantino, 15 AD3d 349, 350;  Trala v. Egloff, 298 A.D.2d 878, 880).

Frances E. Cafarell

Clerk of the Court