On July 26, 2010, Sophie Kapassakis brought her car to a stop as she approached a traffic light at the intersection of Old Country Road and Levittown Parkway in Hicksville. After a few seconds, her vehicle was struck in the rear by a bus. Ms. Kapassakis, then 42 years old, was granted summary judgment as to liability and the case proceeded to a trial on damages only.
The Nassau County jury determined that plaintiff met the so-called 90/180 day threshold under CPLR 5102(d) (but had not satisfied the significant limitation or permanent consequential limitation categories) and awarded pain and suffering damages in the sum of $75,000 (all past – six years).
Plaintiff appealed arguing that the evidence was clear that (a) she had indeed sustained both a significant limitation and permanent consequential limitation to both her right knee and cervical spine and (b) the damage award was inadequate, especially as to the failure to award anything at all for future pain and suffering.
In Kapassakis v. Metropolitan Transportation Authority (2d Dept. 2021), the appellate court (a) increased the past pain and suffering award to $200,000 and (b) affirmed the verdict of no damages at all for future pain and suffering.
Here are plaintiff’s injury claims:
- Neck – herniated disc requiring discectomy and fusion at C6-7 followed by a second discectomy and fusion at C5-6; permanent placement of titanium plate and four screws
- Knee – meniscal tears requiring arthroscopic surgery including debridement and scraping behind the patella; likely needs total knee replacement surgery in future
- Continuing pain and limitations of range of motion
Ms. Kapassakis, 42 years old on the date of this accident, had a prior motor vehicle accident five years earlier, with respect to which she had complaints of back and neck pain requiring treatment with doctors including an orthopedic surgeon. Lower back surgery was discussed. Instead, she treated conservatively but in a visit one month before the current accident, Ms. Kapassakis was reported to have persistent and widespread neck and back pain. The defendant argued that plaintiff had preexisting underlying degenerative disease in both her cervical spine and knee.
- Plaintiff requested that the appellate court increase the past pain and suffering award to $300,000 and the future pain and suffering award to $680,000.
- Plaintiff’s medical experts at trial included her prior treating orthopedic surgeon as well as the knee and spine surgeons who treated her after the current accident. The defense expert was a radiologist.