Bradley-Chernis v. Zalocki

221 A.D.3d 1095

198 N.Y.S.3d 820

Kathryn BRADLEY–CHERNIS, Respondent,

v.Anthony J. ZALOCKI, Appellant.

535273, 535698

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 13, 2023

Decided and Entered: November 2, 2023

Letitia James, Attorney General, Albany (Sean P. Mix of counsel), for appellant.

Basch & Keegan LLP, Kingston (Derek J. Spada of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Aarons, McShan and Mackey, JJ.

MEMORANDUM AND ORDER

Egan Jr., J. Appeals (1) from a judgment of the Supreme Court (James P. Gilpatric, J.), entered March 11, 2022 in Ulster County, upon a decision of the court in favor of plaintiff, and (2) from an order of said court, entered June 21, 2022 in Ulster County, which denied defendant's motion to set aside the verdict.

At 4:05 p.m. on August 2, 2018, defendant, a state trooper, was responding to a 911 call in a marked State Police K–9 vehicle in the Town of Ulster, Ulster County. Defendant was heading southbound on Hurley Avenue, a two-lane road, with his emergency lights activated when he sped up to pass vehicles that had not slowed down or moved to the right. He failed to negotiate a sharp curve in the road and crossed into the other lane of traffic, where he collided head-on with the 2015 Volvo being driven in the opposite direction by plaintiff.

Plaintiff commenced this action in December 2018, alleging that the accident was the result of defendant's negligent, careless and reckless driving and that it caused her to sustain serious injuries. Following joinder of issue and discovery, defendant unsuccessfully moved for summary judgment dismissing the complaint. Supreme Court proceeded to conduct a bench trial on the issue of liability and, at the conclusion of that trial, found that defendant was negligent and that his driving reflected a "reckless disregard for the safety of others" ( Vehicle and Traffic Law § 1104[e] ).

The matter proceeded to a bench trial on damages, where Supreme Court heard testimony from plaintiff and her husband and had before it videotaped testimony from physicians who had treated and/or examined plaintiff, as well as documentary evidence that included a variety of her medical records. The parties offered their posttrial assessments of plaintiff's damages at Supreme Court's invitation, with plaintiff suggesting that, after taking inflation into account, she was entitled to $300,000 for past pain and suffering, $216,000 for future pain and suffering and $99,077.68 in economic damages. Supreme Court thereafter rendered a verdict finding that plaintiff had sustained serious injuries within the meaning of Insurance Law § 5102 and awarding her damages in the amount of $400,000 for past pain and suffering, $432,000 for future pain and suffering and $56,500 in economic losses. Defendant appeals from the judgment entered upon that verdict, as well as Supreme Court's denial of his subsequent motion to set aside the verdict and hold a new trial on the issue of damages.

We affirm. Defendant argues that that the damages awarded to plaintiff for past and future pain and suffering are excessive and "deviate[ ] materially from what would be reasonable compensation" ( CPLR 5501[c] ; see Serrano v. State of New York, 179 A.D.3d 1357, 1358, 117 N.Y.S.3d 748 [3d Dept. 2020], lv denied 35 N.Y.3d 914, 2020 WL 5415034 [2020] ; Fabiano v. State of New York, 170 A.D.3d 1301, 1302, 95 N.Y.S.3d 608 [3d Dept. 2019] ). As the award was made following a nonjury trial, "this Court's power is as broad as that of the trial court, and we may render judgment as warranted by the facts, though we take into account the trial court's advantage of having observed the witnesses" ( Augusta v. Kwortnik, 161 A.D.3d 1401, 1405, 78 N.Y.S.3d 726 [3d Dept. 2018] ; accord Fabiano v. State of New York, 170 A.D.3d at 1302, 95 N.Y.S.3d 608 ; see Baba–Ali v. State of New York, 19 N.Y.3d 627, 640, 951 N.Y.S.2d 94, 975 N.E.2d 475 [2012] ; Byung Choon Joe v. State of New York, 203 A.D.3d 1258, 1258, 164 N.Y.S.3d 299 [3d Dept. 2022] ).¹

We accordingly turn to the awards for plaintiff's pain and suffering, which are "not subject to precise quantification" and require "an examination of comparable cases and such factors as the nature, extent and permanency of the injuries, the extent of past, present and future pain and the long-term effects of the injury" ( Serrano v. State of New York, 179 A.D.3d at 1358, 117 N.Y.S.3d 748 [internal quotation marks and citations omitted]; see Streit v. Katrine Apts. Assoc., Inc., 212 A.D.3d 957, 962, 183 N.Y.S.3d 171 [3d Dept. 2023] ; O'Connor v. Kingston Hosp., 166 A.D.3d 1401, 1404, 88 N.Y.S.3d 679 [3d Dept. 2018] ). The proof at the damages trial reflected that plaintiff, who was 44 years old at the time of the accident, slammed on the brakes so hard prior to the accident that she injured her groin and further sustained injuries from the impact and the fact that the airbag deployed forcefully, shoved her arm into her chest and "pushed back" her shoulders, head and neck. Plaintiff further testified to what transpired in the aftermath of the accident. In particular, she related how she was sitting in her vehicle after the accident when defendant came over to her vehicle and began "yelling at [her]." Responding officers ordered her to get out of her car without making any effort to help her and directed her to sit on the curb, and she watched in a state of shock as one of the officers "rummage[d]" through her car and dumped the contents of her wallet onto the ground in an effort to find her insurance information. This and other behavior made plaintiff feel that the responding officers were trying to bully and harass her, and that feeling was reinforced when a State Police officer kept trying to question her about the accident despite her stating that she did not want to talk to him. Upon being transported to the hospital, plaintiff further described how defendant and another police officer were standing behind her while she was completing paperwork, after which she was wheeled into the emergency room and placed "six inches" away from defendant, the State Police officer harassed her and her husband about obtaining her medical records until she directed him to leave, and several troopers milled around outside of the room where she was being treated.

Plaintiff testified as to how she experienced wrist, shoulder, neck and groin pain after the accident that required regular visits to her chiropractor, a physical therapist and an acupuncturist to address. Plaintiff further described how her physical pain and emotional distress had impacts on her life, noting that her physical problems initially impaired her ability to work and describing how the conduct of law enforcement officers after the accident left her "terrified" and made her feel "unsafe." She also underwent surgery to repair a right shoulder rotator cuff tear in April 2019, and the postoperative care required her right arm to be immobilized for six weeks. Plaintiff made clear that she was continuing to suffer from chronic shoulder pain and intermittent back, neck, groin and knee pain at the time of trial, as well as that she was still regularly treating with a chiropractor, a massage therapist and an acupuncturist. Plaintiff added that she was also still engaging with a mental health professional to address the "mental anguish" caused by the accident, and she admitted that she had developed a drinking habit as a result of the accident and had four alcoholic beverages a day to deal with her pain and anxiety.

Plaintiff's husband further testified as to the impacts her injuries had on her activities, describing how the pain in her arm and difficulty lifting left him responsible for most of the chores around the house for the six months following the accident. He further stated that the "trauma" and "stress" of the accident had impacted their marriage, and described how her ordeal had impacted her business for one or two years after the accident. Moreover, he testified that plaintiff remained physically active but had stopped doing a variety of activities that she had enjoyed before the accident, including skiing, snowshoeing and biking.

Plaintiff further presented the testimony of Luis Mendoza, an emergency medicine physician who examined her in July 2020 and reviewed medical records detailing her treatment from, among others, chiropractors, an acupuncturist, a massage therapist, a physiatrist and a licensed clinical social worker who...