The following papers numbered EF 44 read on this motion by plaintiff, seeking to set aside a jury verdict pursuant to CPLR §4404;Papers NumberedNotice of Motion, Affirmation, Exhibits Plaintiff’s Oral MotionAffirmations in Opposition, Exhibits EF 44 Upon the foregoing papers, it is ordered that this motion is determined as follows:This matter came before the Court for a Jury trial on the issues of Liability and damages on March 12, 2019. The defendant having already been found liable pursuant to a summary judgment order dated February 13, 2019, leaving the sole issue of the plaintiffs alleged comparative negligence and damages for the jury’s determination. Based on that finding as well as the extent of the plaintiffs uncontradicted injuries the court took note of plaintiff’s Insurance Bad Faith claim at the outset of the trial. Here, defendant had already been found to have disregarded a stop sign and struck the plaintiff, who was riding a bicycle adjacent to a public park, resulting in numerous injuries including but not limited to a commuted dispalced fractured clavical which healed with shorteneing, fracutred scapular and fractured right ribs #4, 5 and 6.The liability trial resulted in a verdict by the Jury on March 14th finding the Defendant to be one percent liable for the instant accident. After a one day damages trial, held on March 15, 2019, and the jury returned a verdict finding that the plaintiff had suffered no past pain and suffering.Pursuant to CPLR R. 4404(a), after a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict or any judgment entered thereon and…order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence. A verdict will be set aside if there is no rational interpretation of the evidence which would justify the jury’s conclusion, See, Nicastro v. Park, 113 A.D.2d 129 (2d Dept. 1985). The exercise of the discretion of a trial court over damage awards should be exercised sparingly (James v. Shanley, 73 A.D.2d 752 [3d. Dept. 1979]). Specifically, the trial court should only set aside the jury’s award of damages as inadequate if the award materially deviates from what would be reasonable compensation, (see, CPLR 5501[c]; Shurgan by Shurgan v. Tedesco, 179 A.D.2d 805, 806 (2d. Dept. 1992). The trial court does not have the power to increase a damages award as the setting of damages is purely a jury function. The proper procedure when a damages award is insufficient is to order a new trial on damages unless the defendant stipulates to an increased amount, See, Bock v. City of Mount Vernon, 123 A.D.3d 644, 646 (2d. Dept. 2014).Here, the Court received plaintiff’s oral motion to set aside the verdict immediately upon taking the Damages verdict. Although it was clear to the Court that there was no option other then to grant such a motion, the Court agreed to withhold a decision affording the parties an opportunity to resolve the matter or in the alternative to submit any written arguments on or before April 18, 2019.Plaintiff chose not to submit written documents, relying on the fact that the plaintiff’s uncontroverted trial testimony of his pain and suffering and the certified medical records confirming a commuted displaced clavical fracture which healed with shorteneing, a scapular fracture and fractured right ribs numbers 4, 5 and 6 were sufficient. The defendant, who offered no evidence at the damages trial did provide the Court with a written reply.Defendant claims that plaintiffs arguments fail to take into account “all of the evidence before the jury” and that the Court would be usurping the role of the jury to set aside this verdict. Contrary to defendant’s argument, plaintiff clearly established at a minimum that after the accident, he was transported directly to Elmhurst hospital via ambulance and diagnosed with a commuted displaced fractured clavicle which healed with shorteneing, and fracutred scapula and fractured right ribs. Plaintiff further established that he endured one hundred physical therapy sessions over the course of a year. Additionally, the resulting deformity in plaintiff’s clavicle remains visible to the naked eye. The Court further notes that the defendant failed to present any evidence that contradicted the above.The Court can only set aside a verdict if there is no valid line of reasoning nor permissible inference which could possibly lead rational persons to conclude as they did. This Court has never seen a verdict which so obviously must be set aside. There is no possibility that any rational person could under any circumstances ever find that an individual who suffered a commuted displaced fractured clavicle, which healed with shorteneing, fracutred scapula and fractured right ribs numbers 4, 5 and 6 and underwent one year of physical therapy, endured no pain and suffering.Based on the above the Court hereby sets aside the Jury verdict on the issues of damages and Orders a new trial. The parties shall appear for a pre-trial conference in this part on Thursday June 6th at 11:00 a.m., Jury Selection shall commence on Friday June 7th followed immediately by trial.
