On June 14, 2018, Mauricio Plazas was stopped at a red light in Somers when a left-turning car driven by Brenna Sherlock struck the side of his car. She claimed he’d moved past the stop line into the intersection when the collision occurred. Mr. Plazas, then 45 years old, sued Ms. Sherlock claiming that he sustained significant neck injuries.

The drivers were determined to be equally at fault for the crash and the Putnam County jury awarded pain and suffering damages in the sum of $53,625 (all past – three and a half years). The jury declined to award anything for future pain and suffering, future loss of earnings or future medical expenses.

Plaintiff appealed, arguing that the jury award was inadequate.

In Plazas v. Sherlock (2d Dept. 2024), the appellate court :

  • agreed that the award for past pain and suffering was inadequate and increased it to $200,000
  • affirmed the jury’s award of no damages at all for any item of future damages

Here are the injury details:

  • Plaintiff did not complain of any pain at the scene of the crash and drove himself to work; later that day he drove himself to the local hospital where he complained of wrist and lower back pain. He was treated and released.
  • 10 days later, plaintiff was seen by an internal medicine physician with complaints of neck and lower back pain.
  • physical therapy intermittently for three years
  • epidural steroid and trigger point injections
  • herniated discs at C5-6 and C6-7 per July 2018 MRI
  • cervical discectomy and fusion surgery on 6/18/19
  • continuing pain, limitations of range of motion

The defense argued that this was a minor impact car accident and that plaintiff was not seriously injured. Their orthopedic surgeon expert testified that plaintiff did not sustain any causally related herniated discs and that the surgery plaintiff underwent was not necessitated by the injuries caused in the accident.

Inside Information:

  • Plaintiff continued to work at a shelter for minors as a quality insurance coordinator but quit six months later due to continuing pain.
  • In his summation, plaintiff’s attorney asked the jury to and pain and suffering damages in the sum of $2,500,000. Defense counsel agued that the injuries claimed did not meet the so-called threshold under the Insurance Law and therefore there should be no award of damages at all.

On September 6, 2016, Bruce Brown was asleep in his bed when an unsafe ceiling collapsed above him in an apartment and the debris fell onto him. Mr. Brown then 74 years old, claimed that he sustained significant spinal disc injuries and he sued the premises owner.

After returning a verdict finding that the defendant was negligent, the Bronx County jury awarded plaintiff pain and suffering damages in the sun of $1,000,000 ($500,000 past – 5 1/2 years, $500,000 future – 10 years). The trial judge found that the award was not excessive.

In Brown v. Voda Realty LLC (1st Dept. 2024), the appellate court reduced the pain and suffering award to $800,000 ($400,000 past, $400,000 future).

Here are the injury details:

  • aggravation of age-related, pre-existing degenerative cervical and lumbar spine conditions (herniated discs C3-7 and L3-S1)
  • first medical treatment five days after the incident (treated and released at ER)
  • three months of physical therapy
  • continuing pain in back and neck leaving plaintiff unable to run, dance with his wife, carry his grandchildren or do grocery shopping and requiring over-the-counter pain medication

Inside Information:

  • after the ceiling fell, plaintiff felt immediate pain but he thought it would go away so he then took a shower and went back to bed
  • defendants argued that the pain and suffering award should be reduced to $300,000

On May 21, 2016, a 14 year old girl (N.Y.) attended a sleepover at a friend’s house in Springfield, New York. The house was owned by the friend’s parents, Allan and Melissa Manikas. During the night, N.Y. was allegedly raped by the parents’ 20 year old son Jordan. N.Y. sued Jordan for battery and intentional infliction of emotional distress and his parents for premises liability and negligent supervision.

Jordan denied raping the plaintiff and testified that he never had any kind of sexual contact with her. N.Y. did not waver in her assertion that Jordan raped her. Supporting the claim against Jordan’s parents, plaintiff adduced evidence that they were home on the night in question and were well aware that their had previously exhibited sexually aberrant behavior toward young girls and had a reputation as a sexual predator.

The Otsego County jury found for plaintiff on all causes of action, awarding damages for emotional pain and suffering in the sum of $2,000,000 ($1,000,000 past – six years, $1,000,000 future – five years). They apportioned fault 90% to the parents and 10% to the son. They also awarded punitive damages against the son in the sum of $750,000.

In a post-trial motion, the defendants argued that they were denied a fair trial, among other reasons, because plaintiff’s counsel, especially in his opening statement, invoked racial stereotypes (Jordan is African-American). The trial judge agreed and he issued a post-trial order that vacated the verdict.

Defendants also argued that the damages award was against the wight of the evidence. Plaintiff’s pain and suffering claims were supported by plaintiff herself, a forensic psychologist, plaintiff’s pediatrician and several of plaintiff’s family members.

In Lisa I. v. Manikas (3d Dept. 2024), the appellate court rejected the defendants’ argument that the trial was unfair, reversed the post-trial motion order and remitted the matter to the trial court for entry of an appropriate judgment.

Inside Information:

  • No criminal complaint was ever filed.
  • The parents had a homeowner’s insurance policy with State Farm Insurance Company in the sum of $1,300,000. Plaintiff’ pre-trial settlement demand was $1,200,000 against an offer of $400,000 .

On September 28, 2010, Bei Yang’s obstetricians delivered her child at Greenwich Hospital in Connecticut. An episiotomy was performed during the vaginal delivery that allegedly caused a fourth-degree laceration that was improperly repaired resulting in a rectovaginal fistula.

Ms. Yang retained The Pagan Law Firm to pursue medical malpractice claims against her doctors. They sued the doctors in New York County and, after successfully opposing defendants’ motion for summary judgment and preparing the case for trial, the firm negotiated a settlement for $1,300,000 which was accepted by their client. A month later, the firm issued their client a check for $1,000,000 – the net amount after attorneys’ fees and disbursements.

On 9/14/18, Ms. Yang commenced a legal malpractice action against her former law firm claiming that she was pressured into accepting the $1,300,000 settlement and would have recovered more than that had her former attorneys properly prosecuted her case. On a motion for summary judgment, the attorney malpractice case was dismissed.

In Yang v. The Pagan Law Firm, P.C. (1st Dept, 2024), the dismissal was affirmed. The appellate court noted that plaintiff could not show that but for her former lawyers’ negligence she would have obtained a verdict at trial that exceed the $1,300,000 settlement amount that the defendants negotiated.

Plaintiff argued that her former law firm committed legal malpractice by ignoring her intention to proceed to trial, demanding that she advance trial expenses and coercing her to accept a settlement that was for an amount less than the case was worth.

The law firm argued that they prosecuted the medical malpractice case properly and that their client made a fully informed decision to accept the settlement which was very favorable and avoided the substantial risk of a defense verdict.

Inside Information:

  • Plaintiff submitted an affirmation of an expert medical malpractice lawyer who opined that awards in prior similar cases demonstrated that plaintiff’s “settlement is far less than what a jury might award, and which the appellate division has sustained.”
  • Plasintiff is a lawyer in New York concentrating on workers’ compensation matters.
  • The attorney malpractice lawsuit was commenced two days short of the three year anniversary of the date plaintiff accepted the medical malpractice settlement.

On October 16, 2016, Willie Kendrick was assaulted by a security guard when he visited a patient at Rochester General Hospital.

Mr. Kendrick, then 23 years old, sued the guard alleging assault, battery and false imprisonment. The jury found in his favor and awarded him damages in the sum of $200,000 – $150,000 for pain and suffering plus $50,000 for false imprisonment (in each case, past only – seven years). Both liability and damages were affirmed on appeal in Kendrick v. Rochester General Hospital (4th Dept. 2024).

Plaintiff claimed that when he was leaving the hospital, the guard grabbed and attacked him, hitting, punching and kicking him until he was unconscious and then handcuffing him while he was on a hospital gurney.

Here are the injury details:

  • Facial lacerations and bruising
  • Traumatic injury to kidneys causing rhabdomyolysis (a condition that occurs when muscle tissue breaks down and releases its contents into the bloodstream)
  • two week hospital admission

Inside Information:

  • Defendant argued that plaintiff was being evicted from the hospital, he initiated the physical interaction and his injuries were minor with no fractures or surgery.
  • The altercation was captured on surveillance video.
  • The suit named the hospital as a defendant based on negligent hiring but proceeded to trial against just the security guard.

On February 16, 2016, Munir Seen, then 66 years old, was diagnosed with mesothelioma. He’d been exposed to to asbestos working as a drywall installer in the metropolitan area on a regular basis for about 20 years since 1965,

In 2018, Mr. Seen sued 26 different companies claiming their products caused his mesothelioma. After a bankruptcy stay was lifted, in 2019 he also sued Kaiser Gypsum Company, Inc. (“Kaiser”) claiming that its dry joint compound created asbestos-contaminated dust to which he was exposed.

Mr. Seen died from mesothelioma on July 2, 2019.

The lawsuit proceeded to trial against Kaiser only after the other defendants settled, were dismissed or were otherwise let out of the case. On July 15, 2022, a Manhattan jury found Kaiser was negligent in its failure to warn of its dangerous product. The jury awarded pre-death pain and suffering damages in the sum of $15,000,000 (43 months).

The trial judge declined to modify the award but, on appeal, in Seen v. 84 Lumber Co. (1st Dept. 2024), the award has been reduced to $10,000,000.

Here are the injury details:

  • In the weeks before his diagnosis – fatigue, back pain and shortness of breath resulting in an 11 day hospitalization
  • Two surgical procedures – one after his lung collapsed (pleural effusion) to remove extensive fluid and the other to prevent fluid from developing
  • Throughout the 43 months – continuing shortness of breath, constant debilitating pain requiring narcotic pain killers and extreme weight loss (it was too painful to eat)
  • Tumor that invaded his chest wall causing excruciating pain
  • Severe constipation resulting in hospitalization and numerous humiliating fecal accidents
  • Two bouts of pneumonia in March and May 2019 after which he was discharged to hospice care on 5/30/19
  • Emotional distress including humiliation, loss of dignity and fear of impending death

After his initial hospitalization, Mr. Seen returned to work as a security guard until March of 2019. The defense argued, unsuccessfully, that therefore Mr. Seen’s pain did not last all 43 months after his diagnosis.

Inside Information:

  • Mr. Seen is survived by a very close and loving family including two adult children and four grandchildren.
  • The jury apportioned 70% of the fault to Kaiser with the other 30% ascribed to Weyerhaeuser Co., which previously settled out of the case.

On August18, 2012, Steven Pasternak was riding his motorcycle on a Chenango County road in the Town of Columbus when he lost control, was thrown off and sustained serious injuries.

Mr. Pasternak, then 27 years old, sued the county alleging that the roadway was in severe disrepair permeated with divots, potholes and dips that made it unsafe and caused his accident.

The county claimed that the roadway was safe and that in any event the accident was plaintiff’s fault because he was convicted of driving while intoxicated and was driving too fast. The jury disagreed and found that the road was in an unsafe condition, the county had long known it was unsafe and the unsafe condition was a substantial factor in causing the accident. While the jury agreed that plaintiff was also negligent, they found that plaintiff’s negligence was not a substantial factor in causing the accident.

The jury awarded pain and suffering damages in the sum of $1,050,000 ($250,00 past – nine years, $800,000 future – 40 years). They also awarded damages for medical expenses ($83,238 -past only) and lost wages ($40,000 – past only).

In a post-trial motion, the defendant sought to set aside the verdict and, alternatively, to reduce the pain and suffering damages. The trial judge denied the motion.

The defendant appealed; however, in Pasternak v. County of Chenango (3rd Dept. 2024), the judgment was affirmed.

Here are the injury details:

  • permanent severe to profound hearing loss in one ear
  • torn ligaments in ankle requiring surgery to repair with screws inserted (and removed in a second surgery), with residual pain and range of motion limitations
  • cerebral contusion with small brain hemorrhages requiring short-term medically induced coma leaving plaintiff with post-concussive syndrome
  • nondisplaced scapula fracture

Inside Information:

  • In his summation, plaintiff’s attorney did not ask for a specific amount of damages; instead he simply asked for “fair and reasonable compensation.”
  • Before the verdict, the defendant offered $65,000 to settle.
  • Plaintiff suffered cardiac problems after, but unrelated to, the accident. The trial judge stated this may be why the jury made no award for future lost wages.

On August 1, 2012, Besnik Malecaj was working for an excavation company renovating a townhouse at 45 West 70th Street in Manhattan to convert it from a multi-unit cooperative to a single family residence with an indoor swimming pool. Mr. Malecaj, then 40 years old, injured his neck, back, head and a shoulder when he fell about 11 feet from a wooden plank that had been laid across a corner of the excavated area.

45 West 70th Street

45 West 70th Street

Mr. Malecaj sued the premises owner and the construction manager claiming they violated the Labor Law by failing to provide a safe workplace. The two defendants in turn sued plaintiff’s employer with similar allegations.

The trial judge directed a verdict as to the violations of Labor Law Sections 240 and 241 and the Bronx County jury found that the owner directed and controlled plaintiff’s work, the construction manager acted as a general contractor and all of the defendants violated Labor Law Section 200.

The jury found that plaintiff sustained a grave injury and awarded plaintiff damages in the total sum of $4,741,015 as follows:

  • pain and suffering – $1,630,000 ($1,000,000 past – 10 years, $630,000 future – 20 years).
  • lost earnings – $1,550,000 ($550,000 past, $1,000,000 future – 15 years),
  • medical costs – $1,250,000 ($100,000 past, $1,150,000 future – 20 years), and
  • future loss of retirement benefits – $311,015 (10 years).

While the jury was deliberating, plaintiff and the premises owner defendant reached a high-low agreement. It provided that (a) if the jury were to award a verdict of anything up to $1,000,000 against the owner then the defendant would pay $1,000,000, (b) if the jury were to award a verdict between $1,000,000 and $1,500,000 against the owner that is the amount the defendant would have to pay and (c) if the jury were to award a verdict of more than $1,500,000 against the owner then the defendant would pay only $1,500,000.

Following the verdict, plaintiff’s counsel demanded that owner pay $1,500,000 pursuant to the high-low agreement as a jointly and severally liable defendant under the Labor Law; however, the defendant refused claiming that it only owed $1,000,000 because the jury apportioned only 10% of the liability against it while apportioning 50% to the general contactor and 40% to plaintiff’s employer.

The trial judge agreed with the defendant’s position as did the appellate court in Malecaj v. West 70th Owners Corp. (1st Dept. 2024). The trial judge also ruled that there should be a retrial on the issue of apportionment of damages because only 10% of the fault was assigned to the actual party (the owner) who directed and controlled the work plaintiff was performing when he was injured.

Inside Information:

  • This has been a long and hard fought lawsuit with outstanding and unrelenting efforts by plaintiff’s lawyers at Morgan, Levine & Dolan.
  • Plaintiff’s injuries include a herniated cervical disc at C5-6 that required spinal fusion surgery. traumatic brain injuries leaving him with significant short-term memory deficits, a torn labrum in a shoulder requiring arthroscopic surgery and herniated discs in his back leaving him with permanent pain.
  • Just before trial, the owner sold the building and plaintiff has commenced a new lawsuit seeking to set aside that transfer claiming the sale was a fraudulent conveyance to a shell corporation.
  • The retrial on the issue of apportionment is set for October 8, 2024.

On November 22, 2013, Dorian Wilson went to the emergency department at Kingsbrook Jewish Medical Center in Brooklyn complaining of stomach and flank pain. She reported that she’d taken a home pregnancy test the day before, which was positive. After various tests at the hospital, Ms. Wilson, then 25 years old, was diagnosed with an ectopic pregnancy and given Methotrexate, a chemical abortion, to terminate the pregnancy.

Over the next two weeks, Ms. Wilson sought additional medical opinions and learned she’d been misdiagnosed and that her pregnancy had in fact been normal. As a result of the detrimental and irreversible effects of the Methotrexate (it can cause devastating birth defects), though, Ms. Wilson was forced to undergo a dilation and curettage (D&C) procedure, to terminate her pregnancy.

Ms. Wilson sued her obstetrician-gynecologist claiming that he should not have ordered Methotrexate for her. The Kings County jury agreed and then awarded her damages in the sum of $1,500,000 which included $250,000 for pain and suffering (five years – all past) and $1,250,000 for mental suffering, emotional and psychological injury (not broken down as to past and future).

The jury’s verdict as to liability was upheld on appeal in Wilson v. Finkelstein (2d Dept. 2024) as was the pain and suffering award but the appeals court reduced the award for emotional distress to $700,000.

The pain and suffering award was essentially for pain plaintiff endured from the Methotrexate and subsequent abortion, as well as her persisting inability to enjoy and experience the pleasures of life.

The emotional distress damages were much more significant. Upon being advised that her child could be born with brain damage, heart deformities and missing body parts, and advised to terminate her then confirmed intrauterine pregnancy, Ms. Wilson was distressed, initially repeatedly declined to undergo the termination procedure and she could not eat or sleep, and suffered from anxiety attacks.

Afterwards, plaintiff felt extremely guilty about her decision and sought counseling from the pastor at her church, who she prayed with and sought guidance from over six months, about 2-3 times a week. Her grief affected her social, family and intimate relationships. She testified that her guilt remains with her to this day, and that she relives her grief often. She told the jury she felt like she was left with a scar that continually reopens and that she needs guidance to help her get through it.

Inside Information:

  • The defense took a “no pay” position refusing to make any settlement offer before the verdict. Plaintiff’s attorney, John Bonina, persisted on a difficult, hard-fought case and the ultimate result was outstanding.
  • As a devout Christian, plaintiff did not believe in or want to undergo an abortion.
  • There was not much medical evidence to support plaintiff’s emotional distress claim. She never received any psychological treatment or counseling and the church pastor with whom she consulted had moved to Florida and refused to testify.

On June 23, 2014, John Czechowski was part of a four-man crew performing gutter and siding renovations at a residence in West Seneca. When he climbed onto the homeowner’s ladder to hang gutters, Mr. Czechowski, then 47 years old, sustained a serious foot injury when the fourth rung on the ladder broke and he fell, feet first, onto the concrete pavement below.

In his ensuing lawsuit against the homeowner, Mr. Czechowski was granted summary judgment in his favor; a judge ruled that the defendant was fully at fault. The case then proceeded to a trial on damages only.

The Erie County jury awarded plaintiff pain and suffering damages in the sum of $76,000 ($60,000 past – seven years, $16,000 future – 16 years). Plaintiff appealed, arguing that the amount awarded was inadequate.

In Czechowski v. Wisniewski (4th Dept. 2024), the appellate court agreed with plaintiff and ordered that the damages award should be increased to $275,000 ($150,000 – past, $125,000 – future).

Here are the injury details:

  • comminuted displaced intraarticular calcaneus fracture requiring open reduction internal fixation surgery with the insertion of a titanium plate and screws
  • continuing pain and antalgic gait at time of trial
  • unable to return to recreational activities such as motorcycle riding, skiing, golf and bowling
  • permanent post-traumatic arthritis in ankle

Inside Information:

  • In summations, plaintiff’s attorney asked the jury to award pain and suffering damages in the sum of $1,450,000; defense counsel suggested $75,000.
  • Defendant did not exercise his right to have plaintiff examined by his own medical expert.
  • During trial, the defense offered a high-low agreement with $300,000 as the high and $50,000 as the low. Plaintiff rejected the offer.