On September 19, 2013, Eleanora Rozmarin was driving her car on the Van Wyck Expressway in Queens when her car was struck in the rear. Ms. Rozmarin sued the driver and owner of the other car and her pre-trial motion for summary judgment of liability against the defendants was granted.

The matter proceeded to a trial on the issue of damages only and on October 14, 2015 the Kings County jurors awarded plaintiff $20,000 for her pain and suffering (past only – two years).

In Rozmarin v. Sookhoo (2d Dept. 2019), the appellate court agreed with plaintiff the the damages award was inadequate and it ordered that pain and suffering damages should be increased to $100,000 ($50,000 past, $50,000 future).

As indicated in the court’s decision, plaintiff, then 38 years old, sustained injuries to her spine and left shoulder. Here are the injury details:

  • L5-S1 disc herniation  impinging on the nerve root with radiculopathy and L4-5 disc bulges with thecal sac impingement
  • partial tear of supraspinatus tendon in shoulder

  • physical therapy treatment for four months
  • restricted range of motion in shoulder and back
  • continuing shoulder and back pain limiting hobbies such as piano playing and activities of daily living such as cooking and cleaning

Plaintiff’s treating neurologist testified that she has a permanent injury as did her expert orthopedic surgeon who recommended arthroscopic surgery to repair her left shoulder.

Defendants contended that plaintiff’s injuries were minimal and had resolved, based upon the following:

  • Plaintiff did not seek medical treatment at the scene, there was no ambulance called and she drove herself home; furthermore, she did not seek any medical treatment at all for two weeks.
  • Plaintiff missed no time from work as a registered nurse care manager.
  • She did not go for an orthopedic evaluation of her shoulder until almost one year after the accident.
  • Defendants’ expert neurologist opined that there were no range of motion restrictions, plaintiff sustained mere sprains which had resolved by the time of trial (and there were no herniations) and she had no permanent injuries.

Inside Information:

  • In summations, plaintiff’s attorney asked the jury to award $300,000 for his client’s pain and suffering damages; defense counsel argued that plaintiff’s injuries did not meet the minimum threshold level under the law and therefore she should not be awarded any damages at all.