We hope that you had a fantastic Labor Day! While we are sad to see the summer end, we are excited to jump into fall. Today’s announcement from Governor Como regarding the September 30th reopening of indoor dining in NYC has us very hopeful about the potential reopening of New York Courts. Until then, here are some more cases to help guide you through this unprecedented time.
CHRISTOPHER SWIFT V. ALEXANDER YANOS (152729/16)
VENUE: Supreme New York
TYPE OF CASE: Automobile Liability
FACTS: A 50 year old man was in the back seat of a car stopped near an intersection when it was struck in the rear.
- As a result of the impact, the plaintiff claimed to be propelled forward, resulting in his left, nondominant arm’s shoulder hitting the back of the passenger’s front seat.
- The plaintiff claimed a tear of his left shoulder’s rotator cuff and glenoid labrum.
- The plaintiff suffered trauma in his left elbow what has led to the inflammatory conditions of bursitis (inflammation of the small, fluid filled sacs that cushion your bones, tendons, and muscles) and epicondylitis (also known as tennis elbow).
- The plaintiff received 5 months of physical therapy, then ceased treatment for 6 months, and then resumed for approximately 8 weeks.
- He underwent administration of two injections of corticosteroids.
- Although arthroscopic surgery has been recommended for his left shoulder, the plaintiff has refused the procedure.
- The plaintiff claims that his left elbow and shoulder remain painful. He claims that this pain has hindered his ability to write and type, which is problematic because he is a professor. He also claims that the pain has hindered his ability to ride a bike.
- Defense argued that the plaintiff did not suffer a serious injury as defined by the no fault law, Insurance Law §5102(d). Defense counsel argued that the accident was a minor collision and therefore could not have caused the injuries for which the plaintiff was seeking damages.
- Defense pointed out that in the year preceding the accident, the plaintiff received anti-inflammatory medication injections in his left shoulder.
- The expert orthopedist for the defense opined that swift only suffered a strain of his left shoulder and that he failed to show objective evidence of disability of the left shoulder or elbow.
- The expert neurologist for the defense reported that the plaintiff showed no objective evidence of neurological disability.
VERDICT: The parties negotiated a $100,000/$20,000. The jury found the defendant liable and that the plaintiff suffered a serious injury. They awarded a total of $57,500
LARIVIERE V. NEW YORK CITY TRANSIT AUTHORITY (10792/09)
AFFIRMED: September 23, 2015, Appellate Division, Second Department
VENUE: Supreme Kings
TYPE OF CASE: Automobile Liability
FACTS: A 39-year-old woman was crossing the street when she was struck on the side of her head by a NYC city bus executing a turn.
- Immediately after the accident, the plaintiff was taken via ambulance to the hospital with head pain. Upon the negative results of a CT scan, she was diagnosed with a mild concussion.
- The plaintiff experienced constant migraines that left her bed ridden with consistent nausea, vomiting, dizziness, vertigo, and sensitivity to light.
- Four months after the accident, she experienced a seizure which resulted in a four-day hospital stay.
- She claims that she continues to have seizures, 1-2 times a week.
- The plaintiff has not returned to her job as a hostess in a restaurant, claiming that her condition has made her unable to execute her job.
- She claims that she is no longer able to carry out many daily activities.
- The plaintiff’s expert neurologists, neuroradiologist, and neuropsychologist opined that all of her symptoms caused by the accident are permanent.
- The plaintiff’s experts also testified that she has severe PTSD and a significant traumatic brain injury (TBI) which has resulted in substantial cognitive deficits and a seizure disorder. Her injuries prohibit her from performing any type of gainful employment and require lifelong medical assistance and rehabilitation care.
- The defense’s expert neurologist opined that the plaintiff was exaggerating her symptoms, does not suffer from a seizure disorder, did not respond truthfully in neurological testing, and does not have even a moderate brain injury. The defense claimed that the plaintiff suffered from anxiety and depression which caused pseudo spasms which mimicked the behavior of a seizure.
AFFIRMATION: The jury awarded the plaintiff a total of $60,000 in pain and suffering damages: $40,000 for the past three years and $20,000 for the future 10 years. The Appellate Division, Second Department affirmed the jury’s verdict. According to the Bureau of Labor Statistics, $60,000 in 2015 is equivalent to $65,334.68 in 2020.
GODFREY V. CAPITAL AUTO LEASE, INC. (51707963/02)
REDUCED: November 10, 2011, Appellate Division, First Department
VENUE: Supreme Bronx
TYPE OF CASE: Auto Liability
FACTS: A 21 year old Hunter College student was seated in the rear of a taxicab when it was involved in an accident. The impact caused the plaintiff’s head to be thrust against the plexiglass partition behind the cab driver.
- Immediately after the accident, the plaintiff exhibited head pain, a lump on the side of her head, and a swollen eye. She was taken to the hospital in an ambulance, treated, and released.
- In the week following the accident, the plaintiff continued to experience dizziness and debilitating head pain.
- Seven days after the accident, the plaintiff received a CAT scan in the emergency room which revealed a temporal lobe contusion and a subdural hematoma. She was admitted for observation for 2 days and discharged.
- In the proceeding months, the plaintiff’s condition has deteriorated. She claims to suffer from headaches, fatigue, problems concentrating, depression, and anxiety.
- The plaintiff, a senior in college, completed one more semester before dropping out due to an inability to read.
- The plaintiff claims to spend most time in her apartment in the dark because she now suffers from light sensitivity.
- She has attempted to work but found the task impossible.
- The plaintiff consistently takes extensive medications and takes part in a TBI program that includes at home assistance.
- The expert physician for the plaintiff opined that she will deteriorate with time and requires full time care.
- Defense counsel did not call any expert physicians to testify about the plaintiff’s TBI.
REDUCTION: The jury awarded a total of $3,592,000 in pain and suffering: $260,000 for the past 7 years and $3,332,000 for the future 48 years. The Appellate Division, First Department affirmed the award for past pain and suffering but reduced the award for future pain and suffering to $2,500,000. According to the Bureau of Labor Statistics, $2,760,000 in 2011 is equivalent to $3,161,025.33 in 2020.
TARPLEY, ET AL. V. NEW YORK CITY TRANSIT AUTHORITY (31972/10)
REDUCED: November 20, 2019, Appellate Division, Second Department
VENUE: Supreme Queens
TYPE OF CASE: Auto Liability
FACTS: A couple’s car was struck on the front driver’s side by a city bus while it was stationary, having just been pulled over by a traffic ticketing agent.
- While both the husband and wife are plaintiffs, the husband suffered a majority of the injuries.
- The plaintiff was diagnosed with cervical and lumbar herniated discs with radiculopathy and myelopathy.
- 10 months after the accident, the plaintiff underwent an anterior cervical discectomy and fusion surgery. The surgery resulted in a large, bulbous, keloid (raised) scar on the front of his neck.
- The plaintiff underwent a laminectomy for the placement of a spinal cord stimulator to relieve chronic lower back pain two years later.
- The plaintiff claims to continue to experience chronic pain, despite surgical interventions.
- He takes oral pain medication and receives pain-killing injections, both of which make him feel drowsy.
- The plaintiff claims that as a result of the injuries he sustained in the accident, he is unable to drive long distances, participate in recreational sports, or play with his grandchildren.
- The plaintiff’s treating spinal surgeon opined that the plaintiff will likely need subsequent surgical procedures, including the insertion of a plate and screws in his lumbar spine.
REDUCTION: The jury awarded a total of $10,000,000 in pain and suffering: $3,000,000 for past and $7,000,000 for future. The Appellate Division, Second Department found that this deviated materially from what would be considered reasonable compensation, therefore reduced the awards to $1,000,000 for past pain and suffering and $2,000,000 for future pain and suffering