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89 A.D.3d 471

Page 1

89 A.D.3d 471

(Cite as: 89 A.D.3d 471, 933 N.Y.S.2d 208)

Godfrey v G.E. Capital Auto Lease, Inc.

89 A.D.3d 471, 933 N.Y.S.2d 208

NY,2011.

89 A.D.3d 471, 933 N.Y.S.2d 208, 2011 WL 5427138, 2011 N.Y. Slip Op. 07903

Kenzie Godfrey, Respondent-Appellant

G.E. Capital Auto Lease, Inc., Respondent, and Balhar Singh et al., Appellants-Respondents, et al., Defendants.

Supreme Court, Appellate Division, First Department, New York

November 10, 2011

Damages

Lost Earnings

Traumatic Brain Injury

Mitigation of Damages

Failure to Use Seatbelt

Mauro Goldberg & Lilling LLP, Great Neck (Katherine Herr Solomon of counsel), for appellants-respondents.

Ronemus & Vilensky, LLP, Garden City (Lisa M. Comeau of counsel), for respondent-appellant.

Herzfeld & Rubin, PC, New York (Linda M. Brown of counsel), for respondent.

ble for the accident to the extent of apportioning 50% of the liability to defendant Adjei; denied plaintiff’s motion to

set aside the verdict as to defendant G.E. Capital Auto Lease, Inc.; and granted G.E.’s and Altieri’s and Sgarlato’s

motions to set aside the verdict and order a new trial on damages and the extent to which plaintiff’s failure to use an

available seat belt proximately caused her injuries, unanimously modified, on the law and the facts, to deny plain–

tiff’s and Altieri’s and Sgarlato‘s motions to set aside the jury verdict finding Altieri 100% responsible for the acci-

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(Cite as: 89 A.D.3d 471, 933 N.Y.S.2d 208)

intersection, controlled by traffic lights in each direction, with an automobile operated by defendant Altieri. Altieri

with a subpoena requiring him to testify. However, according to his deposition testimony, which was read to the

jury, he proceeded within the speed limit through a green light. Plaintiff was not wearing a seat belt and she hit her

head on the taxi’s partition. She did not recall whether the taxi was equipped with a seat *473 belt. An accident re-

construction specialist retained by Altieri and Sgarlato testified that the particular model of the taxi driven by Adjei

was equipped with rear shoulder and lap belt harnesses. Had the seat belts been worn, the expert stated, they would

dent, she sought treatment at the emergency room at Bellevue Hospital, where she was admitted for two days. Plain-

tiff testified that when she resumed her classes that fall, she had difficulty keeping her schedule straight, doing easy

equations, following instructions, and retaining things she had read. She stated that she registered with the office for

students with disabilities, which allowed her more time for assignments and exams and gave professors leeway in

grading. She completed the semester and passed all of her classes, but ultimately failed to complete her bachelor’s

seizures, which involved blackouts, severe muscle spasms, cramping in her extremities, and incontinence. She main-

tained that she suffers severe headaches almost daily and takes several medications. She participates in a program

which provides her with some home care assistance and a living skills coordinator to help with activities of daily

living. She testified that she has tried to work, taking administrative jobs and hostess positions at restaurants, but she

is frequently confused and unable to sustain the necessary pace.

lifelong impairments to her memory, verbal skills, and reasoning ability, as well as depression, and would need med-

ication that impairs her liver and causes other side effects. According to the neurologist, plaintiff will require home

assistance for the rest of her life, as well as regular neurological visits, and her condition and the medications will

make her unable to work. A neuropsychologist who treated plaintiff rendered a similar opinion.**2

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(Cite as: 89 A.D.3d 471, 933 N.Y.S.2d 208)

skills are “average.” Plaintiff could not be expected to hold a job because an employer could not rely on her to show

up or be able to function if she did.

Dr. Schuster opined that had plaintiff not been injured, she would have been able to perform any number of highly-

skilled professional jobs, even though she had no clear vocation before the accident. These jobs were identified by

entering plaintiff’s profile in a database maintained by the Department of Labor. They included certain positions

which Dr. Schuster testified were consistent with plaintiff’s interests in physics and mathematics, such as civil engi-

neer and pharmacist. According to Dr. Schuster, the average salary for these jobs was $72,981.47 per year, as re-

flected in 2005 wages. Finally, Dr. Schuster testified regarding a life-care plan he had prepared regarding plaintiff,

which identified the various elements of care, tests, medication and equipment plaintiff would need over the course

parties stipulated at trial that plaintiff had already incurred medical expenses in the amount of $133,652.

Defendants called two experts who disputed plaintiff’s request for lost earnings. Dr. Armando Rodriguez, a professor

of economics and finance, testified that Dr. Leiken’s and Dr. Schuster’s reports regarding plaintiff’s claimed loss of

earnings were methodologically flawed and insupportable. Specifically, he opined that no legitimate basis existed

amounts which are already factored into wages. He stated that Dr. Leiken’s figures for annual increases in medical

care were also overinflated by .5%, which amounts to a significant difference when calculated over 30 years.

Rosalind Zuger, an expert vocational consultant, testified that she looked at medical records, interviewed plaintiff,

and administered four “map reading” tests, which are used to assess traumatic brain injury victims’ ability to process

At the close of the evidence, plaintiff moved for a directed verdict against Adjei based on his failure to appear and

testify at trial. The court denied the motion. However, it gave a missing witness charge, instructing the jury that, if it

did not find Adjei’s explanation for his absence reasonable, it could conclude that his testimony would not have sup–

ported his case, and draw the strongest inference against him.

The jury returned a verdict that Altieri was completely responsible for the accident. It found that GE was not an

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(Cite as: 89 A.D.3d 471, 933 N.Y.S.2d 208)

owner of the vehicle operated by Altieri at the time of the accident. The jury awarded plaintiff damages for past pain

and suffering in the amount of $260,000, and in the amount of $3,332,000 for future pain and suffering. It awarded

her $286,171 for past lost earnings and $928,219 for future lost earnings. As for future medical costs, the jury

found that “a reasonably prudent passenger in plaintiff’s position [would] have used an available seatbelt,” it found

that none of her injuries were caused by her failure to use a seat belt.

All parties moved to set aside the verdict. Plaintiff moved to set aside the verdict that Adjei was not negligent, and

that GE was not an owner of the vehicle. She also sought an increase in the damages awarded by the jury for her

The court granted plaintiff’s motion for a directed verdict against Adjei and directed that judgment be entered

against him finding him negligent in the operation of his taxi and apportioning 50% liability against him. This was

based “upon the unrebutted testimony” of Altieri that Adjei ignored a red light and the fact that he did not appear at

trial. The court denied plaintiff’s motion to set aside the verdict with respect to GE, holding that GE was not, as a

matter of law, an owner of the Jeep. Finally, without explanation, the court granted a new trial on damages and the

disturbed. Despite the **4 conflicting testimony, the jury could fairly have concluded that Adjei failed to see Altieri,

not because he was negligent, but because Altieri’s vehicle either was blocked from view by other cars or drove

through a red signal (see D’Onofrio-Ruden v Town of Hempstead, 29 AD3d 512, 513-514 [2006]). The record pre-

sents no grounds for disturbing the jury’s determination that Adjei’s version of events was more credible than Al-

tieri’s (see Lunn v County of Nassau, 115 AD2d 457, 458-459 [1985]).

Concerning GE‘s liability, title to a motor vehicle is transferred when the parties intend such transfer to occur (see

Potter v Keefe, 261 AD2d 864 [1999]). Thus, title to a vehicle may pass to a purchaser when she takes delivery of it,

notwithstanding that formal registration of the vehicle in the purchaser’s name occurs later (see Pearson v Redline

Motor Sports, 271 AD2d 222 [2000]). Here, even though the registration and license plates of the vehicle driven by

Altieri were still in GE‘s name at the time of the accident, the evidence established that GE delivered an executed

We turn now to the damages awards. Proof of lost earnings must be established with reasonable certainty (Estate of

Ferguson v City of New York, 73 AD3d 649, 650 [2010]). In *478 considering whether a jury’s damages award is

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(Cite as: 89 A.D.3d 471, 933 N.Y.S.2d 208)

inconsistent with the evidence, we are, again, guided by the notion that the jury’s conclusions should be overturned

Hallmark Cards, 45 NY2d 493 [1978]). Plaintiff argues that she established all of her lost earnings within that

standard through the testimony of Dr. Schuster and Dr. Leiken, and asks us to increase the jury award accordingly.

Defendants, on the other hand, urge us to adopt the testimony of their experts, who opined that plaintiff was not enti-

tled to any lost earnings award. They place much emphasis on the fact that plaintiff continued to attend classes after

the accident, and fault her for not submitting any evidence to support her testimony that she received special ac–

tivities. Moreover, the jury was entitled to believe plaintiff’s testimony that she was able to continue some courses

after the accident only with accommodations, notwithstanding the lack of additional evidence of such accommoda-

tions. On the other hand, it was not necessarily inconsistent for the jury to reject plaintiff’s experts’ opinions that she

was utterly incapable of **5 working in any capacity, or to question their calculations of what her earning capacity

would have been if the accident did not occur. Indeed, the jury’s lost earnings award reflects that the jury simply did

dent. This confirms that the jury believed that plaintiff sustained a significant impairment to her health, and it would

not have been irrational for it to conclude that she required all of the medical attention included in the plan. Further,

the jury could have rationally *479 concluded that, to the extent plaintiff would be able to earn some sort of living in

the future, she could only do so with significant medical care and other treatment. While defendants claim that Dr.

Leiken exaggerated the growth rate for medical care (5% per year), Dr. Rodriguez’ testimony concerning the proper

medical expenses was $133,652 should be enforced (see Sanfilippo v City of New York, 272 AD2d 201 [2000], lv

dismissed95 NY2d 887 [2000]).

On the issue of mitigation, we reject plaintiff’s argument that defendants failed to establish the presence of seat belts.

Defendants’ accident reconstruction expert gave sufficient testimony concerning the likelihood that the taxi was

We agree. The accident reconstruction expert testified that plaintiff’s head injuries would not have been so severe if

she had been wearing a seat belt. Plaintiff’s own treating neurologist testified to the same effect. Plaintiff offers no

plausible explanation for how the jury could have found her negligent but failed to account for her conduct in mak-

ing its damages award. Accordingly, the court correctly ordered a new trial to determine the amount by which plain–

tiff’s total damages should be reduced because of her failure to use a seat belt.

89 A.D.3d 471

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(Cite as: 89 A.D.3d 471, 933 N.Y.S.2d 208)

Finally, the jury’s award for future pain and suffering deviates from what would be reasonable compensation to the

extent indicated (CPLR 5501 [c]). Concur—Gonzalez, P.J., Mazzarelli, Richter, Manzanet-Daniels and Román, JJ.