In Ahmad v. Bivomi M. Alshorbagi and Jacal Hacking Corp. (N.Y. Sup. July 22, 2011), the court considered, and rejected, defendant’s CPLR 4404 motion for various elements of post-trial relief following a jury’s damage award. Plaintiff sued defendants, the driver and owner of a taxi that struck him at LaGuardia Airport. A trial judge granted plaintiff’s motion for summary judgment on liability, and the matter proceeded to a jury trial on damages before Judge Lobis. Testifying on behalf of plaintiff were plaintiff himself, a doctor of physiatry, and a police officer who witnessed the incident.
A jury found that plaintiff suffered a “serious injury” based on his sustaining a “medically determined injury or impairment of a non-permanent nature which prevented him from performing his usual and customary daily activities for not less than ninety (90) days during the one hundred eighty (180) days immediately following the accident”, as well as a “permanent consequential limitation of use of a body organ or member” and a “significant limitation of use of a body function or system.” It awarded damages for past pain and suffering, future pain and suffering, future medical expenses, and future rehabilitative expenses.
In their motion, defendants argued that plaintiff’s medical witness’ testimony was insufficient to support the award, that the jury’s award was speculative (as to future expenses) and deviated from comparable awards, and that the police officer’s testimony regarding his observations was prejudicial and lacking in probative value. The court disagreed on all counts.
A defendant seeking relief under CPLR 4404(a) must “establish that the verdict is against the weight of the evidence or that the party is otherwise entitled to judgment as a matter of law.” In ruling on such a motion, the court may not “disturb the jury’s assessment of the evidence, its credibility findings, nor its resolution of disputes between experts.” Furthermore:
“There is no bright-line rule regarding which medical tests must be presented to a jury before it can rationally determine that a plaintiff suffered a ‘serious injury.’ A plaintiff must instead show objective proof of… injury. … An expert’s qualitative assessment of a plaintiff’s condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff’s limitations to the normal function, purpose and use of the affected body organ, member, function or system.”
The court was unable to determine whether the jury’s verdict should be set aside as a matter of law, in light of defendant’s failure to attach a full trial transcript to its motion. In addition, plaintiff’s medical witness’s “testimony was based on more than one examination of plaintiff and covered plaintiffs medical records and MRI studies” and was directed to “the nature and extent of plaintiff’s injuries and what further treatment would be required.” This was sufficient to support the jury’s findings.
Finally, the court found no error in the admission of the police officer’s testimony, which “was limited to his role and observations in the aftermath of the accident” and as such “is probative and admissible as it describes the force of an impact or other incident that would help in determining the nature or extent of injuries and thus relate to the question of damages.”