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.

On March 25, 2002, Arrin Collins was injured when he fell in class at P.S. 168 in the Bronx. No one saw exactly what happened but one of his teachers noticed blood on eleven year old Arrin’s shirt. He’d sustained some severe injuries in and about his mouth and was taken to the school nurse and then by ambulance to the local hospital.

Arrin had been diagnosed as autistic, was essentially non-verbal and was never able to provide an account of how he was injured.

From most accounts, it appears that there was a large multicolored parachute hanging from the ceiling as a decoration and Arrin pulled it down on himself, his feet got tangled up in the parachute and he tripped and fell striking his mouth on a nearby window ledge.

The parachute from Arrin’s class was not produced at trial.

Arrin’s father sued on behalf of his son claiming that Arrin’s injuries were the result of the school’s having failed in its duty to provide adequate supervision. The defendants (the city, its board of education and two teachers) claimed that they provided the proper amount of teachers and paraprofessionals in Arrin’s classroom and, in any event, the accident was instantaneous and therefore not the result of their negligence.

On December 4, 2010, the Bronx jury rendered a verdict finding that defendants negligently supervised Arrin’s classroom and awarded pain and suffering damages in the sum of $4,600,000 ($1,300,000 past – 8 2/3 years, $3,300,000 future – 66 1/2 years).

In a post-trial motion, the defendants argued that the injuries suffered by the plaintiff do not justify the jury’s award, especially in view of the fact that plaintiff’s counsel in summation asked the jury for only $650,000. The trial judge ordered a reduction of the pain and suffering damages award to $250,000 (without specifying the breakdown between past and future).

Both sides appealed – plaintiff arguing that the trial judge’s reduction was unjustified and that the jury’s award was a fair assessment of the injuries, especially considering that Arrin’s disability left him with a  diminished ability to cope. The defendants argued that the entire case should have been dismissed as the school provided reasonable supervision.

In Arrin C. v. New York City Dept. of Education  (1st Dept 2014), the court affirmed both the liability finding against the defendants and the reduction of the pain and suffering damages award to $250,000.

Here are the injury details:

  • fractured jaw
  • loss of two upper left teeth – one was knocked out in the fall, the other was knocked up into Arrin’s upper jaw bone
  • oral surgery to extract the impacted tooth and insert with wires an arch bar to maintain the space and stabilize other teeth
  • alveolar atrophy – shrunken tissue in the area of the missing teeth
  • future surgery needed – two implants with bone and soft tissue connective grafting and implant restoration with crowns
  • implant revision surgery required after Arrin stops growing and again each 20 years thereafter
  • eight fittings for dentures, each requiring three office visits, up to the time of trial
  • one hour per day maintenance of dentures including extensive cleaning, adhesive placement and securing the dentures in Arrin’s mouth as well as a similar removal process at the end of each day

 Inside Information:

  • Under federal law, 20 USC Section 1414, an individualized education program (“IEP”) is required to define the individualized objectives of disabled schoolchildren. Arrin had frequent tantrums, was easily distracted and was severely impaired in expressive language. His IEP provided for (and the school provided) a staffing ratio of one teacher and one paraprofessional for each six children in his class.
  • The teacher and paraprofessional defendants did not appear at trial and in the judge’s charge the jurors were told they may, therefore, conclude that such testimony would not have supported the defense positions and accordingly draw the strongest negative inferences. Defense counsel  explained their absence stating that they were no longer employed by the city with one in Florida and the other’s location unknown. The jury apparently drew an unfavorable inference from their absence.
  • The jury also awarded $100,000 for future medical expenses, an amount that the trial judge and the appellate court determined should be reduced to $50,000.