Chantel McLaurin, Plaintiff, v. RAYEN DELI GRILL CORP RAYEN LITE DELI (2026)

The following e-filed papers read herein: NYSCEF Doc Nos.:

Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed 277-281

Opposing Affidavits (Affirmations) 286

Affidavits/Affirmations in Reply 289

Defendant's Memorandum of Law 282

Plaintiff's Memorandum of Law 287

Upon the foregoing papers, in this action by plaintiff Chantel McLaurin (plaintiff) to recover damages for negligence, defendant Andrew Walcott (defendant) moves, post-trial, under motion sequence number 13, for an order setting aside the jury's $6.4 million damages verdict, pursuant to CPLR 4404(a), 4406, and CPLR 5501(c), as follows: (1) granting a new trial on the issue of damages; or (2) granting a remittitur vacating or significantly reducing: (a) the jury's award of $5 million for plaintiff's future pain and suffering, which he claims was an excessive, unsupported, and unwarranted verdict; (b) the jury's award of $1 million for plaintiff's past pain and suffering; and (c) the jury's award of $400,000 for plaintiff's future medical expenses; and (3) granting such other and further relief as the court deems just and proper.

Facts and Procedural Background

On May 6, 2018, plaintiff was walking to the store on the sidewalk abutting property located at 296 New Lots Avenue, Brooklyn, New York, when she stepped into a hole with her left foot and her ankle twisted inwards. Plaintiff fell and sustained injuries to her left ankle and her left knee. Defendant owned the abutting property where plaintiff fell. At the time of the accident, plaintiff was 23 years old and employed by Grand Street Settlement, a nonprofit organization that services low-income children. Prior to the accident, plaintiff had never sustained any injuries to her knee or ankle, and she was not restricted in her activities.

On May 29, 2019, plaintiff filed her original summons and complaint against defendants, Rayen Deli & Grill Corp., and Rayen Lite Deli, alleging negligence (see NYSCEF Doc No. 1). On October 30, 2020, the court granted a default judgment against both Rayen Deli & Grill Corp., and Rayen Lite Deli (see NYSCEF Doc No. 78). On October 18, 2024, the court denied a motion by plaintiff and a cross-motion by defendant (Andrew Walcott) for summary judgment, and this action continued as against defendant.

A trial was held on the defendant's liability, and on October 9, 2025, the jury found that defendant was negligent; that his negligence was a substantial factor in causing the May 6, 2018 incident; and that plaintiff was not negligent with respect to this incident (see NYSCEF Doc No. 280). After defendant was found liable, a trial was held on the issue of damages beginning on October 20, 2025 up through October 22, 2025 (see NYSCEF Doc No. 279).

Plaintiff was represented by Frank Melendez, Esq. of Subin Associates, LLP, and defendant was represented by Aaron Goldsmith, Esq. of the Gold Firm, P.C. Medical records, including those from New York Sports and Joints Orthopaedics, All Boro Medical, and Best Care Physical Therapy, were marked into evidence.

The evidence showed that plaintiff was immediately taken to the emergency room of Brookdale Hospital and given crutches. Plaintiff did not claim to have sustained any fractures to her knee or ankle. Instead, she presented evidence that her left ankle sustained an internal derangement, joint effusion, tears of the anterior and posterior talofibular ligaments, and a partial tear of the deltoid ligament. As to plaintiff's left knee, she presented evidence that she sustained a tear of the lateral meniscus.

Dr. Siddhartha Sharma, who is board certified in podiatric medicine and in foot and ankle surgery, and Dr. Kenneth McCulloch, who is a board certified orthopedic surgeon, both worked for New York Sports and Joints Orthopaedics. Plaintiff underwent knee surgery on May 2, 2019 by Dr. McCulloch, and ankle surgery on July 24, 2020 by Dr. Sharma. Plaintiff went to physical therapy at All Boro Medical. Thereafter, plaintiff continued with home physical therapy.

Plaintiff and Dr. Sharma testified at the trial. Dr. McCulloch was unable to testify because he is taking time away from the practice to care for a close family member who is terminally ill.¹ Dr. Sharma, therefore, testified as to the May 2, 2019 operative report of Dr. McCulloch in addition to the ankle surgery he (Dr. Sharma) performed on July 24, 2020. Dr. Dorothy Scarpinato,² a board certified orthopedic surgeon, testified as an expert witness for defendant at the trial.³

On October 22, 2025, at 3:46 p.m. (less than an hour from 2:56 p.m., when the jury began its deliberations), the jury rendered its verdict (see NYSCEF Doc No. 279 at 345). In Question 1, the six jurors unanimously found that the May 6, 2018 accident was a substantial factor in plaintiff sustaining pain, suffering, injury, and disability, including loss of enjoyment of life. In Question 2, five of the jurors awarded $1,000,000 as the amount of damages that will justly and fairly compensate plaintiff for her pain, suffering, injury, and disability, including loss of enjoyment of life, from the moment of the accident up to and including the date of the verdict (past pain and suffering). In Question 3, the jury unanimously awarded plaintiff $5,000,000 as the amount of damages that will justly and fairly compensate plaintiff for any future pain, suffering, injury, and disability, including loss of enjoyment of life from the date of the verdict to the end of her life (future pain and suffering). In Question 4, the jury unanimously stated that they intended to provide compensation for any future pain, suffering, injury, and disability, including loss of enjoyment of life resulting from the May 6, 2018 accident, for 50 years from the date of the verdict until the end of plaintiff's life. In Question 5, the jury unanimously awarded $400,000 as the amount of damages that will justly and fairly compensate plaintiff for medical expenses necessitated as a result of injuries sustained in the May 6, 2018 accident from the date of the verdict until the end of her life (future medical expenses). In Question 6, the jury unanimously stated that 50 years was the number of years from the date of the verdict until the end of plaintiff's life for which they intended to provide compensation for medical expenses necessitated as a result of injuries sustained in the May 6, 2018 accident.

On December 12, 2025, defendant filed the instant motion, under motion sequence number 13, seeking to set aside the jury verdict as excessive.

Discussion

Future Medical Expenses

In support of his motion, defendant points to the fact that plaintiff's attorney, in summation, requested $200,000 for plaintiff's future medical expenses, whereas the jury awarded $400,000 for that category. Defendant argues that, as a result, the jury's $400,0000 award is grossly excessive. Defendant further argues that this award should be reduced to zero because it is not supported by the evidence and is speculative.

However, the amount suggested by an attorney during a closing argument is not evidence. The jury considers all of the evidence presented and is not restricted by the amounts suggested in the attorney's closing argument. The jury's award is based solely on the evidence.⁴ Awards of damages for future medical expenses "must be supported by competent evidence which establishes the need for, and the cost of, medical care" (Dowdy v Brooklyn Hosp. Ctr., 248 AD3d 1193, 1196 [2d Dept 2026] [internal quotation marks omitted], quoting Quijano v American Tr. Ins. Co., 155 AD3d 981, 983 [2d Dept 2017], quoting Starkman v City of Long Beach, 148 AD3d 1070, 1072 [2d Dept 2017]; see also Rendon v White Castle Sys., Inc., 241 AD3d 1373, 1377 [2d Dept 2025]; Chung v Shaw, 175 AD3d 1237, 1239-1240 [2d Dept 2019]; Tarpley v New York City Tr. Auth., 177 AD3d 929, 933 [2d Dept 2019]). "Evidence submitted at trial that the plaintiff will incur medical expenses when and if future conditions develop that require treatment is speculative, and does not support an award of damages for future medical expenses" (Pilgrim v Wilson Flat, Inc., 110 AD3d 973, 974 [2d Dept 2013]; see also Starkman, 148 AD3d at 1072). Here, the jury's award for future medical expenses was supported by competent evidence, which established the need for, and the cost of, plaintiff's future medical care (see Dowdy, 248 AD3d at 1196).

Defendant notes that Dr. Scarpinato testified that she reviewed the operative and MRI reports and concluded that plaintiff sustained a sprain to her left ankle, that the ankle condition had resolved, and that plaintiff now had a normal examination (see NYSCEF Doc No. 279 at 213, lines 6-7; at 223, lines 18-25). Here, the jury credited the testimony of Dr. Sharma and rejected the testimony of Dr. Scarpinato. It was within the jury's prerogative to accept Dr. Sharma's opinion and decline to credit Dr. Scarpinato's (see Rendon, 241 AD3d at 1377; Nugent v Highland Rehabilitation & Nursing Ctr., 240 AD3d 601, 603 [2d Dept 2025]; Molina v Goldberg, 231 AD3d 46, 51 [2d Dept 2024]; Blair v Coleman, 211 AD3d 671, 674 [2d Dept 2022]; see also Coleman v City of New York, 87 AD3d 401, 401 [1st Dept 2011]; Crooms v Sauer Bros. Inc., 48 AD3d 380, 382 [1st Dept 2008]).

Dr. Sharma testified that, given plaintiff's young age, she will require an ankle arthroscopy to allow him to insert a camera and clean out the inflammatory scar tissue. He further testified that plaintiff will need this procedure twice over the course of her lifetime, at a cost of $30,000 for each procedure, for a total of $60,000 (see NYSCEF Doc No. 279 at 127, lines 12-15; at 128, lines 3-4). Dr. Sharma further testified that plaintiff has post-traumatic osteoarthritis, which will become severe, and that she will need a total ankle replacement or an ankle fusion, which usually costs about $80,000 (see NYSCEF Doc No. 279 at 127, lines 16-23; at 130, lines 9-10). Dr. Sharma also testified that plaintiff will require MRIs every two years at a cost of $1,500 per MRI (see NYSCEF Doc No. 279 at 128, lines 14-17). Given that plaintiff was awarded future medical expenses over a 50-year period, this would amount to $37,500 (25 years x $1,500 = $37,500). Dr. Sharma, therefore, established future medical expenses in the amount of at least $177,500 ($60,000 + $80,000 + $37,500 = $177,500).

Defendant also notes that plaintiff, after 2020, did not have visits with Dr. Sharma until August and October 2025, and that this is relevant to the question of the severity of her injuries (see NYSCEF Doc No. 279 at 70, lines 21-21). However, the jury credited Dr. Sharma's testimony that, following plaintiff's surgeries, her condition had stabilized and that additional treatment during that period would not have provided any benefit (see NYSCEF Doc No. 279 at 147, lines 12-18).

In addition, Dr. Sharma testified that plaintiff's condition is expected to deteriorate over time, and that she will require further treatment in the future. Specifically, he stated that plaintiff will need cortisone injection treatments, anti-inflammatory medications, including steroids, and physical therapy (see NYSCEF Doc No. 279 at 126, lines 16-19; at 131, lines 17-18). Dr. Sharma further testified that the future medical expenses that he previously identified will be necessary for plaintiff. His testimony established that plaintiff is likely to incur these medical costs in the future. The precise amount of plaintiff's future medical expenses need not be specified herein.

An award of $190,000 for future medical expenses is supported by the evidence and is not speculative. It adequately reflects a reasonable amountof damages that may be awarded. However, to the extent the jury's verdict awarded future medical expenses in excess of $190,000, that portion of the award is speculative and must be reduced to $190,000 (see Tarpley, 177 AD3d at 933; Mohamed v New York City Tr. Auth., 80 AD3d 677, 679 [2d Dept 2011]).

Past and Future Pain and Suffering

" 'The amount of damages to be awarded to a plaintiff for personal injuries is a question for the jury, and its determination will not be disturbed unless the award deviates materially from what would be reasonable compensation' " (Deflorio v County of Nassau, 247 AD3d 1138, 1141 [2d Dept 2026], quoting Wynter v Transdev Servs., Inc., 207 AD3d 785, 787 [2d Dept 2022]; see also Pimenta v 1504 Cia, LLC, 197 AD3d 670, 672 [2d Dept 2021]; Kowalsky v County of Suffolk, 139 AD3d 906, 907 [2d Dept 2016]). " 'The "reasonableness" of compensation must be measured against relevant precedent of comparable cases' " (Deflorio, 247 AD3d at 1141, quoting Aguilar v Graham Terrace, LLC, 237 AD3d 1149, 1150-1151 [2d Dept 2025]; see also Kayes v Liberati, 104 AD3d 739, 741 [2d Dept 2013]). " 'Although prior damage awards in cases involving similar injuries are not binding upon the courts, they guide and enlighten them with respect to determining whether a verdict in a given case constitutes reasonable compensation' " (Deflorio, 247 AD3d at 1141, quoting Aguilar, 237 AD3d at 1151; see also Wynter, 207 AD3d at 787).

The jury's award for past and future pain and suffering is excessive and should be reduced to $700,000 for plaintiff's past pain and suffering and $2,000,000 for plaintiff's future pain and suffering  ⁵ (see e.g. Deflorio, 247 AD3d at 1139 [$1,000,000 for past pain and suffering and $2,250,000 for future pain and suffering both upheld where plaintiff suffered injuries to her left ankle, which had been crushed under the wheel of a police vehicle]; Rendon,⁶ 241 AD3d at 1374 [$600,000 for past pain and suffering reduced to $350,000 and $1,800,000 for future pain and suffering over a 30-year period reduced to $400,000, where plaintiff sustained torn ligaments and tendons in the lateral ankle, underwent one surgery to remove scar tissue and repair those structures, and is expected to require two additional ankle surgeries]; Meyers v Delancey Car Serv., Inc., 197 AD3d 641, 642 [2d Dept 2021][$2,000,000 for past pain and suffering and $4,500,000 for future pain and suffering over a 40-year period upheld where plaintiff sustained lower body injuries that were fully disabling]; Register v SAS Morrison LLC, 189 AD3d 591, 592-593 [1st Dept 2020] [$1 million for past pain and suffering upheld and $6 million for future pain and suffering reduced to $2 million where plaintiff suffered tendon and ligament tears in her right ankle, herniated discs that required a two-day spinal fusion surgery, and pain and limitation of movement]; Kromah v 2265 Davidson Realty LLC, 169 AD3d 539, 540 [1st Dept 2019] [$1,600,000 for past pain and suffering and $4,500,000 for future pain and suffering upheld where plaintiff sustained a trimalleolar ankle fracture, underwent two surgeries, and developed traumatic arthritis and reflex sympathetic dystrophy]; Castillo v MTA Bus Co., 163 AD3d 620, 621-622 [2d Dept 2018] [$500,000 for past pain and suffering and $1,000,000 for future pain and suffering over a 10-year period upheld, where plaintiff sustained torn lateral and medial menisci in her left knee, requiring arthroscopicsurgery, and may need a knee replacement in the future]; Mata v City of New York, 124 AD3d 466, 467 [1st Dept 2015] [$2,000,000 for past pain and suffering reduced to $1 million and $3.5 million for future pain and suffering over 50-year period reduced to $2 million, where plaintiff suffered injuries to her wrist, requiring arthroscopic surgery, and to her spine, requiring laminectomy with fusion surgery]; De La Cruz v New York City Tr. Auth., 48 AD3d 508, 509 [2d Dept 2008], lv denied 11 NY3d 704 [2009][$2,500,000 for past pain and suffering reduced to $1,000,000 and $12,500,000 for future pain and suffering over a 52-year period reduced to $2,000,000, where plaintiff's right foot was run over and crushed by the right front wheel of a bus]).

The court, in making this determination, has considered the nature and extent of the injuries sustained by plaintiff, together with comparable precedent and the awards for past and future pain and suffering. Although plaintiff did not sustain a fracture, she presented evidence regarding the injuries she did sustain. The court finds that the reduced amounts are within the range of reasonable compensation.

Conclusion

Accordingly, defendant's motion is granted to the extent that the jury verdict is set aside and a new trial shall be held on the issue of damages unless within 30 days after service upon plaintiff of a copy of this decision and order with notice of entry, plaintiff serves and files in the office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting to a reduction of the amount of damages for past pain and suffering from the sum of $1,000,000 to the sum of $700,000; for future pain and suffering from the sum of $5,000,000 to the sum of $2,000,000 (over 50 years); and for future medical expenses from the sum of $400,000 to the sum of $190,000 (over 50 years).

Any issue raised and not addressed in this decision and order is denied.

This constitutes the decision and order of the court.

FOOTNOTES

1.   The court ultimately charged the jury that if it found that the caring for a medically ill family member was a reasonable explanation for Dr. McCulloch not to testify, then it should not consider the failure to call Dr. McCulloch in evaluating the evidence, but if it found that this explanation was not reasonable, it may, although not required to, conclude that the testimony of Dr. McCulloch would not support plaintiff's position, and would not contradict the evidence offered by defendant on these issues. The court further charged the jury that it may, although not required to, draw the strongest inference against plaintiff on these issues to the extent it deemed appropriate (NYSCEF Doc No. 279 at 325, line 25; at 326, lines 1-13).

2.   Dr. Scarpinato testified as to a first report dated August 26, 2021, in which she wrote that she was unable to state, to a reasonable degree of medical certainty, that plaintiff's left knee and left ankle surgeries were as a result of the alleged injuries from the accident (NYSCEF Doc No. 279 at 240, lines 6-12). She further testified that she signed a second report dated September 26, 2023, in which she stated that plaintiff complained of the left ankle pain immediately following the accident and Dr. Sharma's pre-operative diagnosis was lateral left ankle instability, and that, therefore, plaintiff's left ankle arthroscopy would be related to the accident (NYSCEF Doc No. 279 at 239, lines 18-23; at 240, line 1).

3.   Defendant originally was going to have Dr. Jonathan Luchs, a radiologist, testify, but then chose not to have him do so (NYSCEF Doc No. 279 at 154, lines 10-13; at 174, lines 14-19; at 186, lines 23-24; at 188, lines 20-24, at 269, lines 13-18).

4.   The court directed the jury to base its decisions solely on the evidence admitted during the trial, and that it may not consider or speculate on matters not in evidence (see NYSCEF Doc No. 279 at 326. lines 19-22).

5.   Plaintiff's attorney, at the trial, had suggested an award of $750,000 for plaintiff's past pain and suffering and an award of $2,250,000 for plaintiff's future pain and suffering (see NYSCEF Doc No. 279 at 313, lines 21-25; at 314, lines 1-5).

6.   Significantly, defendant heavily relies upon Rendon,where the plaintiff therein was also treated by Dr. Sharma. Notably, the plaintiff in Rendon did not undergo a "bracing surgery" that had been recommended by Dr. Sharma for three years, but was treated with cortisone injections, and the plaintiff had made improvements (see NYSCEF Doc No. 282, appendix). Furthermore, the plaintiff in Rendon did not claim any injury to her knee and, therefore, unlike here, had no surgery on it.

Aaron D. Maslow, J.