Hello to all you cyber Monday shoppers. We didn’t want to distract yesterday by taking your eye off that 85” Samsung flat screen or the Eufy Boost IQ RoboVac. So with Thanksgiving in the rear view mirror and Santa 26 days away let’s get to this week’s cases. We all have shopping to do!
MADIA V, GARCIA (27231/16)
AFFIRMED: October 14, 2021, Appellate Division, First Department
VENUE: Supreme Bronx
TYPE OF CASE: Automobile Liability
FACTS: A 24-year-old man was on his motorcycle when he collided with a taxi at an intersection.
INJURIES:
- The plaintiff allegedly sustained a herniated disc at C5-C6 and bulges at C3-C4 and C4-C5.
- The plaintiff also sustained a fracture of his distal tibia (ankle).
- Immediately after the accident, the plaintiff’s leg was casted for seven weeks. The plaintiff was then placed in a walking boot for four additional weeks.
- The plaintiff underwent physical therapy and took narcotic pain medication to treat the herniated disc in his neck.
- The plaintiff claimed that he has lingering effects of the accident in his leg with a pinching sensation.
- The plaintiff claimed that his neck injuries cause him daily discomfort and prevent him from going to the gym or playing sports.
- The plaintiff’s treating physiatrist testified that the plaintiff has a permanent neck injury with range of motion deficits.
- The defense’s neurologist opined that the plaintiff no neurological related to the accident, his physical therapy lasted only a few months, the ankle x-rays showed merely a suspicion of a nondisplaced distal tibia fracture and that plaintiff’s prognosis was “good.
- Defense counsel argued that the plaintiff did not sustain an ankle fracture, instead he only sprained his ankle.
AFFIRMATION: The jury awarded $5,000 for the past three years of pain and suffering. The trial judge increased the award to $250,000, which was affirmed by the Appellate Division, First Department.
GONTAREK V. NEW YORK CITY TRANSIT AUTHORITY (158222/13)
AFFIRMED: September 28, 2021, Appellate Division, First Department
VENUE: Supreme New York
TYPE OF CASE: Trip and Fall
FACTS: A 47-year-old Marine Corps veteran tripped and fell between flights of steps on the staircase at a subway station. He claimed he fell due to cracked tiles on the staircase platform
INJURIES:
- The plaintiff suffered rotator cuff and labral tears with impingement in his right shoulder.
- The plaintiff underwent arthroscopic surgery to repair rotator cuff and labral tears with anchor insertion.
- The plaintiff claimed to experience continuing pain, diminished strength, and limited range of motion in his shoulder.
- The plaintiff claimed that he will require future surgery as a result of his injuries.
- The defense noted that the plaintiff did not seek medical attention for his injuries for six weeks after the accident.
- The plaintiff claimed that the injuries have significantly limited important parts of his life including Ironman training, scuba diving, and bone carving.
- The plaintiff’s expert testified that he will develop arthritis in his shoulder and undergo a replacement (arthroplasty) within 10 years.
- The defendant’s expert opined that plaintiff will not need any future orthopedic treatment or surgery.
AFFIRMATION: The Supreme New York jury awarded $300,000 for the past six and a half years and $300,000 for the future 25 years of pain and suffering. The Appellate Division, First Department affirmed the jury’s $600,000 award.
ROSALIND THOMPSON V. NEW YORK CITY TRANSIT AUTHORITY, MORICIA D. FRANCIS, EMPIRE PARATRANSIT CORPT, ANA TUSA (157277/17)
SETTELED: 2021
VENUE: Supreme New York
TYPE OF CASE: Automobile Liability
FACTS: A 55-year-old receptionist was a passenger in a paratransit vehicle that was struck while executing a left turn.
INJURIES:
- The plaintiff underwent minor treatment for pain in her neck, right hip, and right knee immediately after the accident.
- The plaintiff allegedly sustained a herniation at L4-5.
- The plaintiff claimed the L4-5 herniation caused impingement of a spinal nerve and resultant radiculopathy.
- The plaintiff underwent chiropractic manipulation, physical therapy, and the administration of three epidural injections of steroid-based painkillers.
- The plaintiff eventually underwent a fusion at the L4-5 level.
- After her fusion, the plaintiff continued to experience pain. A radiological study revealed pseudoarthrosis caused by a failed spinal fusion.
- The plaintiff underwent a second surgical fusion of her spine’s L3-L4 and L4-L5 levels.
- The plaintiff claimed that she continued to suffer residual pain and limitations which prevented her from working for a year.
- The defense counsel argued that the plaintiff’s pain was caused by a cyst on her spine’s L4-L5 level that was unrelated to the accident.
- The defense counsel also argued that the plaintiff’s remaining limitations are the result of unrelated injuries to her ankle and knees.
SETTLEMENT: The parties negotiated a pretrial settlement of $2,225,000. Empire Paratransit’s insurer agreed to pay $1,225,000 and the New York City Transit Authority agreed to pay $1,000,000.
