DECISION/ORDER After a jury trial the defendants move pursuant to CPLR §4404(a) to set aside the verdict rendered on October 18, 2018 on the grounds that (1) the verdict was the product of intentional, inflammatory, improper and prejudicial arguments made by plaintiff’s counsel; (2) was contrary to the weight of the evidence and (3) the jury award was excessive. In this action for wrongful death the jury rendered a verdict in favor of the plaintiff in the sum of $750,000 for the decedent’s conscious pain and suffering. The jury declined to award any sum for pecuniary loss sought by Sorrell Velez. The plaintiff was killed as the result of an automobile accident on September 13, 2012. At the time of the incident the plaintiff decedent was riding his motorcycle on West 125th Street in Manhattan when he was struck by a cab owned by defendant Bolla Taxi, Inc. and driven by defendant Kandarpo Roy. The jury awarded the plaintiff the sum of $750,000 for approximately one minute of pain and suffering.The defendant argues that the verdict should be set aside because of the personal attacks made by plaintiff’s counsel during summation. Defense counsel contends that plaintiff’s counsel’s repeated insinuation that defense counsel lied during summation was so prejudicial as to warrant that the verdict be set aside and a new trial held. In addition the defendants contend that plaintiff’s counsel improperly expressed his own belief as to what the evidence showed and argued facts to the jury which were completely untrue. Defendant also argues that the court committed reversible error in allowing the videotape of the accident to be shown to the jury without the plaintiff first establishing a proper foundation for its admission. Finally, the defendant maintains that the award for conscious pain and suffering was excessive and that the award should be reduced or a new trial held.Under CPLR §4404(a), a trial court has the discretion to order a new trial in the interests of justice (Lariviere v. New York City Transit Authority 131 A.D.3d 1130). In considering whether to exercise its discretionary power to order a new trial based on errors at trial the court must decide whether substantial justice has been done, whether it is likely the verdict has been affected and must look to its own common sense of fairness rather than precedents in arriving at its decision (Id). It is appropriate in the interests of justice for a court to order a new trial where comments made by an attorney for a party’s adversary deprived that party of a fair trial or unduly influenced a jury (Rodriguez v. City of New York 67 A.D.3d 884). It has been held that an attorneys objection to improper conduct, but failure to timely move for a mistrial before a jury returns a verdict renders the error un-preserved and may limit appellate review (Smith v. Rudolph 151 A.D.3d 58). However it is within the sound discretion of the trial court in addressing a motion pursuant to CPLR §4404 to determine whether it is likely that the verdict has been affected by the alleged misconduct (Id).In this action the defendants argue that plaintiff’s attorneys comments made during summation were of such a nature as to deprive the defendants of a fair trial. Specifically the defendants object to the attorneys claims during summation that defendant’s counsel had lied to the jury. In a specific statement to the jury counsel in his closing stated “Why did Mr. Toner say that? Because when you make up stories, its impossible to keep your lies straight.” In addition the defendants claim that plaintiff’s counsel improperly injected his opinion as to the evidence and contradicts evidence elicited by the plaintiff’s own witnesses. Plaintiff’s counsel contends that he acted appropriately in his closing and only served to highlight discrepancy in evidence offered by the defendant.It is well settled that trial counsel is afforded wide latitude in presenting arguments to a jury in summation (Gregware v. City of New York 132 A.D.2d 51). During summation an attorney remains within the broad bounds of rhetorical comment in pointing out the insufficiency and contradictory nature of the opposing proof without depriving the opposing party of a fair trial (Selzer v. New York City Transit Authority 100 A.D.3d 157). In Gregware (supra) the defendant moved to set aside a jury verdict in favor of the plaintiff where on summation plaintiff’s counsel made statements impugning defense counsel and vouching for his own credibility. In denying the motion to set aside the verdict the Court held that although some of the statements were highly inflammatory they did not create a climate of hostility that so obscured the issues as to have made the trial unfair (Id quoting Wilson v. City of New York 65 A.D.3d 906, 908). In order to establish entitlement to a new trial based upon the misconduct of opposing counsel it must be demonstrated that the misconduct was so wrongful and pervasive as to constitute a fundamental error and a gross injustice warranting the trial court to set aside the verdict in the interests of justice (Bermingham v. Atlantic Concrete Cutting 159 A.D.3d 634).Here because the court finds that the statements made by plaintiff’s counsel did not create a climate of hostility that so obscured the issues as to have made the trial unfair, that portion of the motion to set aside the verdict on these grounds must be rejected. While the statements made by counsel during summation may have been, impolite, discourteous and disrespectful, the court does not find that the defendants were deprived of the right to a fair trial (see, Gregware supra). These comments when viewed in the context of the entire trial did not rise to a level where it can be held that the misconduct constituted fundamental error depriving the defendants of substantial justice and likely affected the verdict (see Smith v. Rudolph supra; Rodriguez v. City of New York supra). Although the jury returned a verdict in favor of plaintiff with respect to pain and suffering, the jury declined to award any damages for pecuniary loss. While not dispositive, it at least points to a conclusion that the jury was not clouded by statements made by plaintiff’s counsel during closing arguments.The defendants argue that the court’s admission of the videotape depicting the accident was improper and warrants a new trial. The court has already ruled on this issue and it is preserved for Appellate review. The court was convinced that the videotape offered in evidence was reliable although it was not the original tape of the accident. Several factors militated in favor of the court admitting the video. First, the court was convinced that the original video was either lost or destroyed by the New York City Police Department. In this regard the court admitted an affidavit from the New York City Police Department attesting that the video could not be located. Second, the video was produced as the result of a FOIL request. The court believes that the video produced was reliable and that because it was produced by the City of New York, chances that it was altered or tampered with were highly unlikely. Finally, the police officer who investigated the accident testified that the video produced was the one he had viewed in making his report. Testimony, expert or otherwise may establish that a videotape truly and accurately represents what is before the camera (People v. Patterson 93 N.Y.2d 80). The decision to admit or exclude videotape evidence rests within the sound discretion of the trial court and may only be disturbed when no legal foundation has been proffered or when an abuse of discretion as a matter of law is demonstrated (Id). The fact that the copy shown to the jury was not as clear as the original shown to the investigating Police Officer does not render it unreliable or inadmissible.Equally unavailing is defendant’s argument that the plaintiff should not have been permitted to slow the video down, stop it or zoom in. A videotape is no different than other demonstrative evidence and the plaintiff was free to publish it to the jury as deemed fit. The court instructed the jury that they were free to examine the videotape at any time. In fact in their deliberations the jurors asked to view the accident and also requested that a portion of it be enlarged so that they could get a better view. The remaining arguments advanced by defendant’s counsel regarding certain evidentiary rulings have already been addressed by the court during the course of the trial and are preserved for appellate review.Lastly the defendants argue that the jury verdict awarding the plaintiff decedent $750,000 for conscious pain and suffering was excessive requiring a new trial or in the alternative a modification reducing the award. Pursuant to CPLR §5501(c) a jury award is excessive if it deviates materially from what would be reasonable compensation. In order for the court to determine whether a jury award materially deviates from what would be considered reasonable compensation the court is required to look to similarly appealed verdicts (Donlan v. City of New York 284 A.D.2d 13). In determining damages for conscious pain and suffering experienced in the interval between injury and death, when the interval is relatively short, the degree of consciousness, severity of pain, apprehension of impending death, along with duration, are all elements to be considered (In re 91st Street Crane Collapse Litigation 154 A.D.3d 139 quoting Regan v. Long Island R.R. Co 128 A.D.2d 511). Moreover when comparing injuries and awards it is incumbent upon the court to consider not only the type of injury and level of pain, but the period of time for which that pain is being calculated (Garcia v. Queens Surface Corp. 271 A.D.2d 277).The jury awarded damages for conscious pain and suffering finding that the plaintiff’s decedent suffered conscious pain and suffering for one minute. The credible evidence supports this finding. Although, it may be possible that decedent suffered for a period of time somewhat less than one minute, the difference would only amount to a matter of seconds and would not lead to a contrary result in terms of the plaintiff’s right to recover damages. The issue is whether an award of $750,000 exceeds reasonable compensation. The defendants argue that the award should be no more than $100,000 and submit a series of verdict and settlements supporting this claim, all of which date back a decade or more.In considering whether the award in this case materially deviated from what would be considered reasonable compensation the court reviewed several awards issued by both the First and Second Departments. In a recent case the Appellate Division First Department sustained a verdict awarding $300,000 for conscious pain and suffering for a period of two to five seconds after the plaintiff decedent was struck by a bus (Oates v. New York City Transit Authority 138 A.D.3d 470). In Filipinas v. Action Auto Leasing (48 A.D.3d 333), the court held that the sum of $750,000 was reasonable compensation for conscious pain and suffering of approximately one hour. An award of $750,000 for conscious pain and suffering, including pre impact terror, was found to be excessive and reduced to $375,000 (Santana v. DeJesus 110 A.D.2d 561). In the Second Department an award for conscious pain and suffering in the sum of $1,250,000, for a period of between eleven and twenty minutes was found to be unreasonable and reduced to $400,000 (Vatalaro v. County of Suffolk 163 A.D.3d 893).Based on the above the court finds that the award to plaintiff in the sum of $750,000 for conscious pain and suffering deviates materially from what would be considered reasonable compensation for the injuries. Under the facts presented here the court finds that an award of $350,000 for plaintiff decedent’s conscious pain and suffering of approximately one minute is reasonable.Accordingly the defendants motion to set aside the jury verdict is granted to the extent of setting aside the verdict and ordering a new trial on damages only, unless the plaintiff, within 30 days after service of this order with notice of entry, stipulates to a reduced verdict for pain and suffering in the sum of $350,000.This shall constitute the decision and order of the court.Dated: April 2, 2019
