KOPOLOVITCH v. 200 WATER SPE LLC (2021)

Judgment, Supreme Court, New York County (Alexander M. Tisch, J.), entered May 23, 2019, upon a jury verdict awarding plaintiff the principal sum of $100,000 for past pain and suffering only, reduced to $10,000 upon the jury's apportioning 90% fault to plaintiff, unanimously affirmed, without costs.

Plaintiff's arguments regarding defendants’ use of certain photographs are not persuasive given the court's swift and precise curative instruction (see Martelly v. New York City Health & Hosps. Corp., 276 A.D.2d 373, 373, 714 N.Y.S.2d 64 [1st Dept. 2000]), and the jury's apportionment of 90% fault to plaintiff and 10% fault to defendants was not against the weight of the evidence (see generally CPLR 4404[a];  Bun Sin Lee v. Pathmark Stores, Inc., 1 A.D.3d 219, 219, 767 N.Y.S.2d 94 [1st Dept. 2003]).  It was undisputed that at the time of the accident, plaintiff did not notice the readily apparent wet condition of the floor.  Moreover, expert testimony established that the floor had adequate friction for proper footwear.  Conflicting evidence was presented regarding whether wet floor signs were placed prior to plaintiff's fall, whether plaintiff was using the service area in an authorized manner, and whether plaintiff's footwear could have contributed to her fall.  After weighing the evidence, the jury could have reasonably determined that plaintiff's own actions were the predominant cause of her fall (see e.g. Gonzalez v. City of New York, 45 A.D.3d 347, 348, 846 N.Y.S.2d 92 [1st Dept. 2007], lv denied 10 N.Y.3d 701, 853 N.Y.S.2d 542, 883 N.E.2d 369 [2008];  Ramputi v. Ryder Constr. Co., 12 A.D.3d 260, 261, 784 N.Y.S.2d 548 [1st Dept. 2004]).

We also decline to disturb the jury's award of damages.  The jury was entitled to determine that plaintiff's knee injuries were not related to her hamstring injury, as the parties presented conflicting expert opinions as to the cause of plaintiff's knee problems.  The award of $100,00 for past pain and suffering was sufficient where the jury could have reasonably found that plaintiff's hamstring healed in April 2012, without permanent impairment, and that plaintiff malingered or exaggerated her symptoms (e.g. Calzado v. New York City Tr. Auth., 304 A.D.2d 385, 758 N.Y.S.2d 303 [1st Dept. 2003];  Togut v. Riverbay Corp., 114 A.D.3d 535, 980 N.Y.S.2d 428 [1st Dept. 2014]).  The jury's decision not to award damages for future pain and suffering was supported for the same reasons.  The decision not to award lost earnings was supported where plaintiff did not claim to have lost any wages between July 2011, when she fell, and April 2012, when her hamstring healed, and she failed to explain how her injury affected the commissions or bonuses she received during that time.  The jury's determination not to award future medical expenses for knee replacement surgeries was not against the weight of the evidence, where it found that plaintiff's knee injuries were not related to the accident.