What’s it Worth? September 16, 2020

On Behalf of | Sep 16, 2020 | What's It Worth? |

Welcome to this week’s “What’s it Worth?”! As we emailed you yesterday, Chief Judge Janet DiFiore announced on Monday that “jury trial pilots” would take place in Suffolk and Westchester Counties in the coming weeks. Earlier today, we learned that civil jury trials will also resume in Richmond County in mid-October. In addition, county administrative judges have reached out to attorneys who handle criminal cases in an effort to resume criminal trials in October. Although we cannot predict when any of our cases will be called in for trial, or how the court will respond to requests for adjournments, we expect that we will start to receive notices on our older cases within the next few weeks. What happens thereafter is anyone’s guess. Should you wish to discuss please give us a call.

RIVERA V. KOLSKY (62171/12)

AFFIRMED: August 8, 2018, Appellate Division, Second Department

VENUE: Supreme Westchester

TYPE OF CASE: Automobile Liability

FACTS:  A 30-year-old Home Depot employee was driving his car when another car executing a left turn struck his vehicle.


  • Intra articular commiuted fracture dislocation of his left hip requiring two days of skeletal traction with the insertion of a distal femoral traction pin and then removal of the pin
  • Open reduction internal fixation of the acetabular fracture bone graft harvest, screws and a nine-hole plate and open treatment of the femoral fracture of the left hip.
  • Fracture of his left knee’s femoral condyle (the ball-shape located at the end of the femur).
  • The plaintiff also alleged a torn meniscus in his left knee which would require a total knee replacement in the next three to five years. An MRI taken shortly after the accident showed the tear, however an MRI taken two years later which revealed no tear. The defense argued that there was never a tear but rather that the plaintiff’s pain was attributed to his morbid obesity.
  • The plaintiff also claims that the accident aggravated a pre-existing back injury.
  • The plaintiff was hospitalized for three weeks, after which he was transferred to a rehabilitation facility.
  • The plaintiff claims that he has continued pain and limited range of motion in the hip.
  • The plaintiff was out of work for three years following the accident but recently returned to Home Depot.
  • He has post-traumatic arthritis, which the expert orthopedic surgeon for the plaintiff opined will require a hip replacement surgery within the next four years.
  • The defendants did not present any witnesses.

AFFIRMATION: The jury found that the accident was not the proximate cause of the plaintiff’s back injury, and therefore did not grant any pain and suffering for that injury. The jury awarded $300,000 for past and $1,000,000 for future pain and suffering from the plaintiff’s knee and hip injuries. The Appellate Division, Second Department affirmed the jury’s award. According to the US Bureau of Labor Statistics, $1,300,000 in 2018 is equal to $1,340,070.44 in 2020.

GUSS V. CITY OF NEW YORK (147 A.D. 3d 731)

AFFIRMED: February 1, 2017, Appellate Division, Second Department

VENUE: Supreme Kings

TYPE OF CASE: Trip and Fall

FACTS: A 54-year-old woman fell in a hole that was four to five feet long and four feet wide in a street near her home after she exited a taxicab. The New York City Department of Environmental Protection excavated the area approximately 6 weeks prior to the plaintiff’s fall.


  • Despite being in pain, the plaintiff did not seek medical attention for two days after the accident.
  • The plaintiff suffered from a fracture of her left femur’s head and neck which required surgery two days after the accident followed by a nine-day hospital stay.
  • The plaintiff also suffered an infection which required removal of hardware and revision surgery 8 months after the initial surgery.
  • The plaintiff has experienced many hip dislocations for which she underwent two additional surgeries for hip dislocation complications with new hip requirements.
  • She claimed that the accident exacerbated her pre-existing osteoporosis.
  • In addition, plaintiff claimed the accident caused exacerbation of anxiety and depression, which she had suffered from for two years prior to the accident.
  • After the plaintiff’s 4th surgery, she became bedridden, requiring permanent residence in a nursing home.
  • The plaintiff’s expert opined that due to her pre-existing medical problems, the plaintiff’s life expectancy was approximately 5 years.

AFFIRMATION: The jury awarded $433,333 for the past 7.5 years and $216,667 for the future 8 years pain and suffering. According to the US Bureau of Labor Statistics, $650,000 in 2017 is equal to $693,532.92 in 2020.


AFFIRMED: April 25, 2018, Appellate Division, Second Department

VENUE: Supreme Kings

TYPE OF CASE: Slip and Fall

FACTS: A 64-year-old minister was crossing the street after parking her car when she stepped on a pothole that was covered by black ice. The accident occurred approximately 100 feet from the nearest cross walk.


  • The plaintiff suffered from a comminuted displaced fracture of the tibia and fibula bones in her left ankle.
  • She underwent an open reduction internal fixation surgery with the insertion of an intramedullary nail and four screws.
  • The plaintiff stayed in the hospital for one month after surgery, after which she was transferred to a long-term care facility for four months during which she was confined to a wheelchair.
  • The plaintiff’s expert orthopedic surgeon testified that her fractures healed but she now suffers from permanent swelling, weakness, pain, tenderness, loss of range of motion, and walks with a limp.
  • The defendant’s expert argued that the plaintiff’s injuries had healed well, and she has no limp or difficulty walking or standing.
  • The plaintiff claims that which she has been able to return to her job as a minister but claimed that she has to lean or sit to preach. The defense had photographic evidence which depicted the plaintiff standing while preaching.

AFFIRMATION: The jury assigned only 20% of the blame to the defendant and awarded $150,000 in past pain and suffering. The jury declined to award anything for future pain and suffering. While the Appellate Division, Second Department reapportioned the fault with defendant holding 45% of the blame, it did not alter the jury’s verdict in respect to damages. According to the Bureau of Labor Statistics, $150,000 in 2018 is equal to $155,610.95 in 2020.




AFFIRMED: December 28, 2016, Appellate Division, Second Department

VENUE: Supreme Kings

TYPE OF CASE: Automobile Liability

FACTS: A 35-year-old executive assistant for a private equity firm was crossing the street when the side mirror of a vehicle making a left turn struck her left arm.


  • The impact of the collision did not knock the plaintiff down.
  • The plaintiff declined an ambulance at the scene of the accident. She went to the emergency room the following day, where she was examined and sent home with prescription pain medications.
  • The plaintiff saw two separate orthopedic surgeons, both of which recommended physical therapy.
  • The plaintiff’s treating orthopedic surgeon claimed that she sustained a torn labrum, which resulted in inflamed tissue impinging on her rotator cuff.
  • The plaintiff underwent arthroscopic surgery on her left shoulder; however, the necessity of the surgery was debated. The plaintiff claimed that the surgery was to address her torn labrum, but the defense claimed that she only had mild bursitis (inflammation of the small, fluid filled sacs that cushion the bones, tendons, and muscles near joints.) The MRI of the plaintiff’s shoulder did not show a labral tear. The treating surgeon claimed that he saw a tear when conducting the surgery.
  • The defense argued that the plaintiff did not sustain a serious injury as defined by the “No Fault Law” (Insurance Law §5102) and therefore could not collect any pain and suffering damages.
  • The plaintiff was unable to return to work for one week following the accident, after which she lost her job but returned to a similar job one month after her surgery.
  • The plaintiff claims that she takes over the counter pain medications daily and that she has limitations of what she can do. It is important to note that she can and does lift her children who are three and seven years old.

AFFIRMATION: The jury awarded $25,000 for the past 2.5 years of pain and suffering and nothing for future pain and suffering. The Appellate Division, Second Department affirmed the jury award. According to the Bureau of Labor Statistics, $25,000 in 2017 is equal to $26,758.26 in 2020.

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