THERESA A. LAMPHRON-READ, PLAINTIFF-RESPONDENT,
DAVIS MONTGOMERY AND DESMOND J. MONTGOMERY, DEFENDANTS-APPELLANTS.
OFFICE OF DANIEL R. ARCHILLA, BUFFALO (JEFFREY SENDZIAK OF
COUNSEL), FOR DEFENDANTS-APPELLANTS.
CELLINO & BARNES, P.C., BUFFALO (ELLEN B. STURM OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND
from an order of the Supreme Court, Monroe County (Thomas A.
Stander, J.), entered March 21, 2016. The order granted
plaintiff's motion to set aside the verdict and for a new
trial on damages, unless defendants agree to stipulate to
increase the award for past pain and suffering to $65, 000,
and agree to stipulate to an award of $65, 000 for future
pain and suffering.
hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.
Plaintiff commenced this action to recover damages for
injuries that she sustained when her motor vehicle was struck
head-on by a vehicle owned by defendant Davis Montgomery and
driven by defendant Desmond J. Montgomery. The issue of
liability was resolved by Supreme Court in favor of
plaintiff, and a jury trial on the issue of damages was
conducted. The jury awarded plaintiff $25, 000 for past pain
and suffering, but made no award for future pain and
conclude that the court properly granted plaintiff's
motion pursuant to CPLR 4404 (a) to set aside the verdict
with respect to damages as against the weight of the
evidence. Plaintiff sustained fractures of the transverse
processes of her thoracic spine at vertebrae T-5 to T-9, an
L-1 left-sided transverse process fracture of her lumbar
spine, and a C-4 vertebral fracture of her cervical spine. It
is undisputed that plaintiff was in significant pain as a
result of her injuries, was hospitalized for a week, and was
unable to perform most daily activities without assistance
for a couple weeks after her return home (see e.g.
Simmons v Dendis Constr., 270 A.D.2d 919, 920).
Plaintiff was required to wear a cervical collar brace and a
Thoracic-Lumbar-Sacral Orthosis (TLSO) for three months
(see e.g. Stewart v Manhattan & Bronx Surface Tr.
Operating Auth., 60 A.D.3d 445, 446; Pares v
LaPrade [appeal No. 2], 266 A.D.2d 852, 853), and those
devices immobilized plaintiff "[a]s much as [one could]
be without any type of surgery" (see e.g. Bouzas v
Kosher Deluxe Rest., 83 A.D.3d 538, 538). Plaintiff was
unable to walk, sit, or stand for prolonged periods without
aggravating her back pain (see e.g. Deyo v Laidlaw
Tr., 285 A.D.2d 853, 854; Diglio v Gray Dorchester
Assoc., 255 A.D.2d 911, 912; Wroblewski v National
Fuel Gas Distrib. Corp., 247 A.D.2d 917, 917). Even
routine actions, such as carrying groceries or mowing the
lawn, caused her pain and required her to stop and rest
(see e.g. Wroblewski, 247 A.D.2d at 917).
Plaintiff's ability to engage in home improvement
projects, recreational activities, and long-distance visits
with her family has been curtailed (see e.g. Barrow v
Dubois, 82 A.D.3d 1685, 1687; Palmer v CSX Transp.,
Inc. [appeal No. 2], 68 A.D.3d 1626, 1627;
Simmons, 270 A.D.2d at 920; Diglio, 255
A.D.2d at 912), and her pain has also interfered with her
ability to sleep (see e.g. Barrow, 82 A.D.3d at
independent medical examiner, a board certified orthopedic
surgeon, testified that plaintiff's neck and lower back
pain had subsided and no longer required treatment. It was
uncontroverted, however, that plaintiff's thoracic spine
fractures caused permanent paraspinal muscular injuries,
resulting in chronic activity-related back pain for which
there was no available remedy (see e.g. Simmons, 270
A.D.2d at 920; Scott v Yurkewecz, 234 A.D.2d 673,
675; see generally Inzinna v Brinker Rest. Corp.
[appeal No. 2], 302 A.D.2d 967, 968). The orthopedic surgeon
also testified that plaintiff's subjective descriptions
of pain were consistent with her injuries (see e.g.
Wroblewski, 247 A.D.2d at 918), and that the type of
compressive force necessary to cause her multiple fractures
had to have been "significant." We note that,
although plaintiff was examined by a physician chosen by the
defense, defendants did not present the testimony of that
physician or any other medical expert (see e.g. Beckwith
v Rute, 235 A.D.2d 892, 894).
light of the uncontroverted evidence that plaintiff suffered
substantial pain from seven vertebral fractures, was
temporarily immobilized, has continued to suffer pain from
daily activities, and has been limited in her enjoyment of
recreational activities, we conclude that the award of $25,
000 for plaintiff's past pain and suffering "is
inadequate and could not have been reached upon any fair
interpretation of the evidence" (Inzinna, 302
A.D.2d at 968). Moreover, given the uncontroverted medical
testimony that plaintiff continues to suffer from permanent
and chronic activity-related pain that is causally related to
this motor vehicle accident, the failure to award damages for
plaintiff's future pain and suffering is also against the
weight of the evidence (see Inzinna, 302 A.D.2d at
968; Scott, 234 A.D.2d at 675; see generally
Lolik v Big V Supermarkets, 86 N.Y.2d 744, 746). We
further conclude that the court properly determined in the
alternative that the award of $25, 000 for plaintiff's