On August 25, 2012, Natalie Bar-Levy went with friends to Studio Square, a now closed sports bar in Astoria. She became involved in a verbal altercation with another customer and the bar’s bouncers were summoned to escort her out. While doing so, Ms. Bar-Levy, then a 25 year old schoolteacher, was shoved down a flight of stairs, falling head first and landing on her face on the concrete floor at the bottom of the stairs.

In the ensuing lawsuit, the bar was found to be fully liable for assault and battery causing plaintiff’s injuries and the Queens County jurors awarded pain and suffering damages in the sum of $3,000,000 ($1,000,000 past – three years, $2,000,000 future – 50 years).

The trial judge agreed with the defense that the pain and suffering award was excessive and the future damages award was set aside. After the trial judge retired, another judge agreed with plaintiff that the trial judge should have set forth a specific award for future pain and suffering (to which plaintiff could have stipulated in order to avoid a new trial on that issue). In Bar-Levy v. 35-33 36th Street Corp. (Sup. Queens 2017), the new judge issued a decision reducing the future pain and suffering award to $250,000 (for five years) while the past pain and suffering award was not disturbed. The pain and suffering damages award then stood at $1,250,000. A punitive damages award of $1,000,000 was dismissed.

Plaintiff appealed. Before the appellate court ruled, the parties recently settled the case for the sum of $800,000.

Here are the injury details:

  • bilateral LeFort Type I fracture (starting at the base of her nose running through the bone under the cheek bone down to the ptergoid plate)

  • open reduction and internal fixation surgery to reduce the fracture, with four plates, eight screws and wires inserted
  • inability to eat solid food for two and a half months
  • fractures to four teeth, requiring root canals and crowns
  • soft tissue injury to right hip in the nature of a labral tear
  • admitted to hospital for three days
  • increased risk of losing every tooth in upper jaw (one required surgical removal and placement of a bone graft before trial)
  • continuing pain and discomfort in face during periods of cold weather; continuing occasional pain in right hip

The defense did not produce any damages witness (plaintiff relied upon her treating oral surgeon’s testimony) but argued that any award for future pain and suffering was speculative contending that plaintiff (a) had fully healed, (b) had been pain free in her jaw within a few months of the incident and (c) was able to run two miles a day within six months.

Inside Information:

  • Plaintiff’s pre-verdict settlement demand was $850,000 against an offer of $100,000.
  • In summations, plaintiff’s attorney asked the jurors to award $1,000,000 for past pain and suffering and $2,000,000 for the future (the exact amounts the jury then awarded).
  • Plaintiff did not appeal the punitive damages dismissal and, post-trial, she stipulated to accept $475,000 for future pain and suffering damages

On May 20, 2008, Alexander Nayberg was stopped at a red light in Garden City when two other cars collided in the intersection and one of them struck Mr. Nayberg’s car in the rear.

In the ensuing litigation, a Nassau County jury found that the two colliding drivers were each 50% at fault for the accident and Mr. Nayberg’s injuries and they awarded pain and suffering damages in the sum of $1,600,000 ($600,000 past – six  years, $1,000,000 future – 20 years).

In Nayberg v. Nassau County (2d Dept. 2017), the appellate court affirmed the damages awards.

Here are the injury details:

  • herniated disc at C6-7 requiring cervical discectomy and fusion surgery three years later with the insertion of a plate and four titanium screws

  • additional cervical fusion surgery required in future at levels(s) above and/or below C6-7
  • fractured teeth and bridge requiring seven extensive dental  procedures including extractions, implants and bone grafts

Plaintiff, 54 years old when the accident occurred, had been employed at Bloomingdale’s earning $70,000 a year as an operating director in its restaurant division for seven years until a few months before when he was laid off in an economic downturn. He then formed his own construction company and  one week before the accident, he was offered his first job but he was physically unable to take it. When this case was tried, plaintiff was still in pain, unable to help his wife with household chores, pick up anything more than 10 pounds or engage in construction work.

The jury also awarded plaintiff, and the appellate court affirmed, damages  for lost earnings in the sum of $773,751 ($447,858 past – six years, $325,893 future – 16 1/2 years). The defense argued that the entire lost earnings award was speculative and should be vacated because it was based upon plaintiff’s expected lost income from a start-up business. The appellate court rejected the argument noting that plaintiff established this claim with reasonable certainty through his own testimony and that of an expert economist and that the defendants failed to submit any evidence in opposition.

The jury also awarded damages for future medical expenses (for additional spinal surgery) in the sum of $200,000 (10 years) and future dental expenses in the sum of $25,000 (two years).

Inside Information:

  • There was no award for loss of consortium damages claimed by Mr. Nayberg’s wife.