Friday, October 07, 2011

Representative Results - Cheriff & Fink, P.C.

The following are digested from The New York Jury Verdict Reporter , and other sources. These cases are representative of some of the types of claims handled by this office.


SETTLEMENT: Cecilia Pesavento v. Daniel and Noella Schloendorn Westchester Supreme

Pltf. Atty: Bruce J. Cheriff of Cheriff, Cheriff & Fink, P.C., Manhattan

Deft. Atty: Mark A. Puleo of Burke, Lipton & Puleo, White Plains

This case settled for $110,000 prior to jury selection. Pltf., a 37-year-old school psychologist, claimed that at approximately 5 PM she was injured in a motor vehicle accident that took place at the intersection of Rte. 117 and Rte. 120 in Chappaqua. Pltf. claimed that Deft. made a left turn in front of her vehicle. After depositions, Pltf. was granted summary judgment on liability.

Injuries: herniated cervical disc at C5-6, confirmed by MRI; post-traumatic stress disorder; fibromyalgia. Pltf. claimed that she was unable to return to work because of her injuries, and was unable to work anywhere for approximately 1 year. Deft. claimed that Pltf. was fired from her job as a school psychologist and that this was unrelated to the accident. Deft. would have argued that Pltf. was not disabled and that she exaggerated her injuries. Deft.'s radiologist disputed the herniation.

Carrier: Liberty Mutual.

Pltf. Experts: Pltf. would have called Dr. Gladys Cardenas, physiatrist, Rye Brook; Dr. Mark Spellman, psychologist, Manhattan.

Deft. Experts: Deft. would have called Dr. Bento Mascarenhas, rheumatologist, Wshite Plains; Dr. Charles R. Smith, neurologist, White Plains; Dr. James Morrissey, orth. surg., Yonkers. 



Case name withheld at clients' request

Settlement: $750,000. A Federal Court mediation was held. The mediator continued to work for the next 3½ weeks by telephone until the matter was settled.

Pltf. Atty: Bruce J. Cheriff of Cheriff, Cheriff & Fink, P.C., Manhattan

Deft. Atty: Richard C. Prezioso of Hoey, King, Perez, Toker & Epstein, Manhattan

Pltf., a 63-year-old internist specializing in nephrology, claimed that he was driving northbound on Route 137 in Pound Ridge, when Deft., who had a stop sign facing her, entered the intersection from Upper Shad Rd. and collided with the side of his vehicle.

Pltf. testified that he first saw Deft. when he was five cars lengths away, and at that time he had no reason to believe she would enter the intersection. When he saw that Deft. was entering the intersection, he tried to avoid contact by steering to the left, but he was hit by Deft.

Deft. admitted that she never saw Pltf. until after she hit his vehicle. She also admitted that she was involved in another accident at the same intersection, with the same stop sign set against her, in 1991.

Injuries: comminuted compound fracture of the left humeral shaft; comminuted fracture of the distal radius; avulsion fracture of the ulnar styloid of the left wrist; displaced comminuted fracture through the left second metacarpal; fractured first metacarpal. These injuries resulted in permanent radial nerve palsy and slowed ulnar nerve function. Surgical procedures undertaken were: open reduction and internal fixation of the humerus including irrigation and debridement as well as exploration of radial nerve; closed reduction of dislocated distal radial ulnar joint; closed reduction interarticular distal radius fracture and application of external fixator; open reduction and percutaneous K wire fixation of left index metacarpal; and closed reduction and percutaneous pin fixation to dislocated left thumb carpometacarpal joint. Pltf. was hospitalized for 1 week. Demonstrative evidence: aerial photograph of intersection and professional photographs of pieces of Pltf.'s vehicle and articles of clothing found at the accident scene. Specials: approximately $60,000 (including lost earnings). Dr. Saperstein missed 4 weeks of work.

Pltf. Experts: Dr. Roger LaGratta, orth. surg., Danbury, Connecticut; Dr. Neil Culligan, neurologist, Danbury, Connecticut; Jerilyn Nolan, occupational therapist, Danbury, Connecticut.

Deft. Experts: Dr. Ronald Silverman, neurologist, Bronxville; Dr. Sheldon Manspeizer, orth. surg., White Plains.



Trans Union Corp. v. Gramercy Brokerage, Inc., 3-day trial, Jury Verdict, Eastern District, Judge: Eugene H. Nickerson

Verdict: Defense verdict (8/0). Jury: 4 male, 4 female.

Pltf. Atty: Bruce S. Luckman of Marion, Satzberg, Trichon & Kogan, Philadelphia, Pennsylvania Deft. Atty: Bernard Cheriff and Adam H. Stone of Cheriff, Cheriff &Fink, Manhattan

Facts: Pltf. sub-landlord and Deft. sub-lessee entered into a sublease agreement for 4,008 square feet of office space on Queens Blvd. in Rego Park for a term of 7 years, to begin 30 days after Pltf.'s contractor substantially completed work on the office space, pursuant to specifications attached to the lease. Deft. never took possession, claiming that the office space was not close enough to the specifications to render it "substantially complete." Pltf. claimed that the office space was substantially completed, and brought suit for the rent to be collected on the 7-year lease, including Deft.'s share of electricity, taxes, and building maintenance, plus interest. Deft. brought a counterclaim for lost profits which would have been earned in the larger office space, and for lost opportunity for a better deal on office space subsequently offered to it. The jury found for Deft. Demonstrative evidence: sublease agreement; correspondence; floor plans; mechanical and electrical plans; as-built drawings. Offer: $50,000; demand: $600, 000; amount asked of jury: $640,000. Jury deliberation: approximately 1 day. Pltf. Expert: Tori Zoraksh, P.E., engineer, Rego Park. Deft. Expert: Matthew Davis, construction manager, Manhattan.



(Client Name and Index Number Withheld), 4-day trial, Liability verdict; Damages verdict, New York Supreme, Judge: Sheila Abdus-Salaam

Verdict: $110,000 v. City of New York (6/0), reduced by $10,000 settlement with Brown, and further reduced to $85,000 for 15% negligence of other parties. Breakdown: $35,000 for past pain and suffering; $75,000 for future pain and suffering.

Liability: City 85%; Brown 7.6%; Pltf. 7.4% negligent. After the liability verdict, Pltf. settled with Brown for $10,000. Jury: 1 male, 5 female.

Pltf. Atty: Bruce J. Cheriff of Cheriff, Cheriff & Fink, P.C., Manhattan; Deft. Atty: Howard L. Singer, Asst. Corp. Counsel, for City of New York; John Ponterio of Tutoki & Levy, Manhattan, for Brown and Gelco Corp.

Facts: This motor vehicle accident took place at the intersection of 86th St. and Park Ave. in Manhattan. Pltf. was a 41-year-old taxi driver at the time. He claimed that the accident occurred approximately 1 hour after the traffic lights at the intersection had been reported "all out" by the 18th Precinct to the New York City Department of Transportation. Pltf. claimed that he was driving his taxi southbound on Park Ave. when he entered the intersection. He admitted that he did not notice that the traffic lights at the intersection were out. He testified that he saw Deft.'s vehicle, which was traveling west on 86th St., a few seconds before impact. Deft. Brown (7.6% liable — settled for $10,000) testified that the light was not working properly, but suddenly turned green, and she entered the intersection. Deft.'s husband, a passenger in her vehicle, corroborated her account of the accident. Deft. City (85% liable) introduced evidence that it had given notice of the problem to a lighting company, which, it claimed, arrived at the intersection within 1½ hours after it was notified, and shortly thereafter fixed the traffic control.

Injuries: spinous dysfunction. Pltf. underwent intermittent chiropractic treatment for several years. Pltf.'s expert testified that Pltf.'s injury was permanent and had not improved since the time of the accident. Pltf. testified that as a result of this accident, he was fired from his job as a taxi driver, and claimed that he is currently living in a transient hotel, because his injuries prevent him from keeping a full-time job. Deft.'s expert claimed that Pltf. suffered cervical and lumbar strains and sprains, which had resolved by the time of trial. He testified that there were no objective criteria for Pltf.'s subjective complaints. On cross-examination, the City introduced evidence that Pltf. had originally filed a tax return for the year before the accident showing $7,000 in income. The City revealed that Pltf. amended his return after the accident to show a claimed income of $78,000. Deft. argued that Pltf. was not taken to a hospital following the accident, and did not seek any medical treatment until almost 6 weeks after the accident.

Demonstrative evidence: Pltf.'s tax returns; City documents concerning the repair of the traffic control device. No offer; demand: $400,000. Jury deliberation: 1½ hours on liability; 2 hours on damages. Carrier: ITT Hartford for Brown. Pltf. Expert: Dr. Jay Rosenblum, neurologist, Manhattan.; Deft. Expert: Dr. Bruce Reitberg, orth. surg., Manhattan.



Douglas Puchades v. John Doe and Daniel Bryson, 1-day bench trial, Southern District

Judge: Sonia Sotomayor

Decision: Bench verdict on liability for Pltf. The case settled for $62,000.

Pltf. Atty: Bruce J. Cheriff of Cheriff, Cheriff & Fink, P.C., Manhattan

Deft. Atty: Paul A. Liggio of James D. Butler, Manhattan

Facts: This accident took place on 116th St., approximately 500 feet west of 7th Ave. in Manhattan. Pltf., a 43-year-old handyman, claimed that while he was riding his bicycle on West 116th St. he was struck by Deft.'s vehicle. Pltf. claimed that the unidentified driver of Deft.'s vehicle struck him after making a U-turn on West 116th St., and that the driver then fled the scene. Pltf. testified that the driver was a black male. Pltf. noted the license plate number of the car and gave it to the police at the accident scene. The plate number, which was confirmed by an independent eyewitness, matched Deft. Bryson's car.

Deft. Bryson claimed that his vehicle was not involved in the accident, and that if it was, it was not operated with Bryson's permission or consent. Deft. argued that Pltf. did not have an independent recollection of the plate number at his deposition or at trial. Deft. testified that on the date of the accident, he was a self-employed computer specialist who resided in New Jersey, and was working from his residence as a computer consultant. Deft. is approximately 6 feet tall, has blond hair, and is of German/English ancestry. He claimed that he did not operate the vehicle at that location on the date of the accident, and had no knowledge concerning the happening of the accident. As proof, Deft. offered computer records which indicated that he was home all day on the accident date. At trial, Pltf. argued that the computer records could have been generated on any date. Deft. testified that he did not give permission to drive his car to anyone matching the alleged driver's description, and argued that he could see his car from his home all day on the accident date.

Injuries: (not before the court — settled for $62,000) herniated cervical disc at C6-7. He claimed that he was unable to work for approximately 5 months. Deft. disputed Pltf.'s claim that the disc was herniated, and contended that the injury was degenerative in nature and not related to the accident. Deft. further contended that Pltf. was fired from his job shortly after the accident for poor attendance, unrelated to his injuries.

Carrier: First Trenton Companies.

Pltf. Experts: Dr. Dennis Rossi, radiologist, Hewlett; Dr. Jane Watson, internist, Manhattan.

Deft. Expert: Dr. Ralph Olson, neurosurgeon, Manhattan.



Larkin v. Estate of Dr. Hanna Adjami, 4-day trial, Verdict, Judge Bernard Fuchs, Kings Civil

VERDICT: $85,000 (5/1). Breakdown: $55,000 for past pain and suffering; $30,000 for future pain and suffering. Post-trial motions were denied. Jury: 1 male, 5 female. Pltf. Atty: Tracie A. Sundack of Cheriff & Cheriff, Manhattan, Deft. Atty: James J. Collins of McCabe & Cozzens, Mineola

Facts: The accident occurred at the intersection of Shore Rd. and 83rd St. in Brooklyn. Pltf., a 26-year-old money manager, was injured when she was struck by Deft.'s car as she jogged on Shore Rd. at approximately 8 PM. Pltf. claimed that Deft.'s car struck her from behind, knocking her onto the hood. She contended that after she fell off the hood, Deft. hit her again. Deft., who died before trial had claimed that Pltf. ran out from between two parked cars on the opposite side of the street. Liability was conceded and the trial proceeded on damages.

Injuries: herniated disc at L4-5 and L5-S1; bulging discs at C4-5 and L4-5, confirmed by MRIs; rupture of the left hamstring with a large scar from a hematoma on her thigh in the area of the rupture. Pltf.'s expert testified that her complaints of pain and restriction of movement were consistent with nerve root impingement. Deft. argued that Pltf. did not receive treatment for the bulging discs until 9 months after the accident. Deft.'s expert testified that his examination of Pltf. was negative except for a weakness in her left toe. He further testified that this was consistent with a nerve injury, but not the type of which Pltf. complained. Pltf. testified that she was not able to jog as far as she had before her accident. Pltf. further testified that she suffered severe pains in her neck when she stayed on the phone too long at work. She also claimed that she occasionally suffered from a "dead" arm if it remained in a certain position for too long. Demonstrative evidence: MRIs. Offer: $ 40,000; demand: $75,000 (policy); amount asked of jury: $300,000. Jury deliberation: 4 hours. Carrier: State Farm. Pltf. Expert: Dr. Howard Balensweig, orth. surg., Manhattan. Deft. Expert: Dr. Thomas Guthrie, neurologist, Manhattan.



Roger Clarke v. Montgomery Ward & Co., Toro Co., Outboard Marine Corp., Brooklyn Muffler Co. d/b/a Midas Muffler and Brake Shop, Settlement, Eastern District

Pltf. Atty: Bruce J. Cheriff of Cheriff & Cheriff, Manhattan

This action settled before trial for $90,000. Pltf., a 28-year-old mechanic employed by Deft. Brooklyn Muffler Co., claimed that he was using a Gilson Brothers snow thrower model # GIL477E to remove snow at work. The product was distributed by Deft. Montgomery Ward and manufactured by Gilson Brothers in 1970. Gilson Brothers was out of business at the time of trial and Defts. Toro Co. and Outboard Marine were successor corporations. Pltf. testified that he was attempting to remove clogged snow from the machine when he was injured. He argued that the product was defective because it was not equipped with a deadman's control which would automatically shut the impeller blade when the controller's hands left the handlebar. Pltf. also claimed that there were no instructions provided with the impeller clutch, which stopped the rotating blade. He contended that there should have been warning labels placed on the handlebars rather than near the chute, where they could be covered by snow. Defts. argued that regulations did not require a deadman's control at the time that the product was manufactured. They also contended that there were adequate warnings on the product and that Pltf. was comparatively negligent. Defts. argued that Pltf. was a mechanic and should have realized that it was dangerous to place his hands in the machine while it was running. Pltf. argued that he grew up in the Caribbean and was not familiar with the operation of snow removal equipment.

Injuries: traumatic amputation of the top quarter of the middle and ring fingers of the dominant hand; comminuted fracture of the index finger. Pltf. claimed that he was out of work for 8 months. Settlement apportionment: $10,000 was paid by Brooklyn Muffler, which also waived a $ 41,113 Workers' Compensation lien. Montgomery Ward paid $80,000. Carriers: Continental and Travelers. Pltf. Experts: Pltf. would have called Gilbert Ray, mechanical engineer, Mechanical Designs and Instrumentation Consultants, Inc., West Caldwell, New Jersey and Dr. Lancelot Young, orth. surg. and hand surgeon, Howard Beach.



James and Doreen Walsh v. Roger Gagne and F.A. Bartlett Tree Expert Co., Inc., Settlement, Nassau Supreme

Pltf. Atty: Bruce Cheriff of Cheriff & Cheriff, Manhattan

This was a $50,000 settlement, after jury selection, for a 27-year- old exterminator who was injured in a motor vehicle accident at the intersection of Powerhouse and Roslyn Rds. in Hempstead. Deft. Gagne was driving a car owned by Deft. Bartlett. Pltf. and Deft. each claimed to have had the green light. Injuries: acromioclavicular joint sprain of the right (dominant) shoulder with restriction of motion; posttraumatic stress disorder with spastic colon; cervical sprain. Pltf. was hospitalized for 2 days. Defts.' experts would have denied that Pltf.'s posttraumatic stress disorder and spastic colon were related to this accident. Carrier: Kemper. Pltf. Expert: Pltf. would have called Dr. Howard Balensweig, orth. surg., Manhattan. Deft. Experts: Deft. would have called Dr. Kirk Zachary, gastroenterologist, Manhattan; Dr. Morton Marks, neuropsychiatrist, Manhattan; and Dr. Arthur Matles, orth. surg., Manhattan.



Paul Davis v. Christopher Marino, Settlement, Westchester Supreme

Pltf. Atty: Kenneth S. Fink of Cheriff & Cheriff, Manhattan

This action settled for $90,000 before trial. Pltf., age 36 and unemployed on the date of the accident, claimed that Deft. had a yellow light and a yield sign at the intersection of the Taconic State Pkwy. and Bryant Pond Rd. in Putnam County but failed to yield the right- of-way, striking his vehicle. Injuries: tear of the left medial meniscus requiring two arthroscopic surgeries; two chipped teeth requiring root canal; scars on the chin, forehead, and left knee; cervical and lumbar sprain. The scar on Pltf.'s forehead was keloid and could not be covered by his hair. The scar on his chin was small and did not require corrective surgery. Pltf. did not work until 1 year after the accident, when he was hired as a copy machine repairman. There were no claims of lost earnings. Carrier: Utica Mutual.



Leslie Burton, indiv. and as m/n/g of Foster Burton III v. Luvia International Enterprises, Inc., Decision, Hon. Helen E. Freedman, New York Supreme

DECISION: $180,000. Breakdown: $125,000 for past pain and suffering; $50,000 for future pain and suffering; $5,000 for medical expenses. This was an inquest without a jury.

Pltf. Atty: Kenneth S. Fink of Cheriff & Cheriff, Manhattan, Deft. Atty: No appearance

Facts: Pltf., age 9 at the time, testified that he tripped and fell on the staircase in Deft.'s apartment building at 219 West 121st St. in Manhattan. Pltf. was a tenant in the building. His mother testified that the stairway was defective because tiles and the metal edging strip on one step had peeled off. She testified that she reported the condition of the stairs to the building manager on several occasions. Deft. defaulted and failed to appear at this inquest. Injuries: lumbar sprain with pain radiating into the right leg. Pltf. missed 3 months of the school term and was unable to participate in gym and recess for an additional 2 months. He was also not able to attend summer camp as he had previously done. When he returned to gym class he was able to participate with no restrictions. Demonstrative evidence: photos of the accident location; hospital records; affidavit of treating chiropractor. Pltf. Expert: Dr. Heidi Sonn, chiropractor, Manhattan (by affidavit).



Rajroop Sooknanan v. Ramesh Deonarin, Omar Mangroo, and Savitri and Nidudra Bhagwandeen, Decision, Judge Herbert Kramer, Kings Supreme

DECISION: $2,500,000. This was an inquest. Defts. defaulted.

Pltf. Atty: Kenneth S. Fink of Cheriff & Cheriff, Manhattan, Deft. Atty: Omar Mangroo, Pro Se, No appearance by the other Defts.

Facts: Pltf., a 32-year-old delivery van driver, testified that he fell in a common area hallway of a home owned by Defts. at 204 Norwood Ave. in Brooklyn. Pltf. was visiting his nephew at the time, who was a tenant. Pltf. testified that he tripped on a buckling in a carpet scrap on the floor. There was no wall-to-wall carpeting in the hallway, but several loose carpet scraps were placed randomly on the floor. Pltf. testified that the hallway had been in disrepair for several months and that lighting was poor. Injuries: oblique fracture of the right distal tibia; comminuted fracture of the right fibula. Pltf. underwent open reduction and internal fixation with an intramedullary rod and two screws. He developed chondromalacia in the right knee from the insertion of the hardware, and was left with several prominent surgical scars. Pltf. was out of work for 8 months. Pltf.'s orthopedic surgeon's report indicated that Pltf. has a permanent disability which limits his ability to walk, run, and step in and out of his delivery van. Note: Defts. were uninsured. Three of the four Defts. failed to appear at the inquest. Deft. Mangroo appeared and was advised by the court that if he did not appear within 30 days, the inquest will be issued against him as well. Pltf. Expert: The report of Dr. Howard Balensweig, orth. surg., Manhattan, was placed into the record by affirmation. He did not appear at this inquest.



"Jane Doe" v. "John Doe", Decision, Judge Ariel E. Belen, Kings Supreme

DECISION: $400,000. Breakdown: $200,000 for past pain and suffering; $200,000 for future pain and suffering. Pltf. was granted summary judgment on liability, and this was an inquest on damages.

Pltf. Atty: Bruce J. Cheriff of Cheriff & Cheriff, Manhattan, Deft. Atty: No appearance

This action arose out of an assault that occurred at Pltf.'s residence when Deft., Pltf.'s ex-boyfriend, broke into her apartment and assaulted her. Pltf. was a 31-year-old bookkeeper at the time. She testified that Deft. kicked down the door and then punched her, hit her with the phone, and tried to choke her with the phone cord. Pltf. testified that she was able to lock herself in the bathroom until police arrived. Deft. was arrested and subsequently pleaded guilty to assault. Injuries: displaced nasal fracture with thickened left nasal bone and deviated left nasal septum; ganglion cyst on right wrist requiring surgical removal; bruised ribs. Pltf. testified that she still suffers from headaches, recurring nightmares, diminished sense of smell, and chronic sinus problems and congestion. Her physician recommended that she undergo rhinoplasty. Demonstrative evidence: photographs. Pltf. also produced the hospital records and affidavit of her treating otolaryngologist, Dr. Donald Weisman, Manhattan. Offer: $27,000 payout ( withdrawn); demand: $35,000; amount asked of court: $500,000.



Fira Popovic v. Jacob Popovic, Settlement, Queens Supreme

Pltf. Atty: Bruce J. Cheriff of Cheriff, Cheriff & Fink, Manhattan

This $60,000 settlement, before jury selection, was for a 68-year-old woman who was injured in an accident on the Van Wyck Expwy. in Queens. Pltf. was a passenger in a vehicle owned by her son, Deft. Jacob Popovic, and operated by her husband. Pltf. s husband lost control of the car on the slippery road and collided with a guard rail. Pltf. was previously granted summary judgment on liability. Injuries: comminuted fracture of the left clavicle; cervical radiculitis. Pltf. claimed that the injury did not heal properly, and she required a bone growth stimulator. Deft. s orthopedist would have testified that there were no objective findings to substantiate Pltf. s complaints of continued pain. He also would have claimed that the fracture healed properly. Pltf. Expert: Dr. Howard Balensweig, orth. surg ., Manhattan. Deft. Expert: Dr. Donald Forman, orth. surg., Bellerose.



Zhanna Aybinder, indiv. and as p/n/g of Gennady Aybinder; Semyon Aguvayev; and Regina Aybinder v. Anthony Fiore and "John Doe", 1-day trial, Decision, Kings Supreme, Judge: Luigi R. Marano, Decision: $100,000 for Gennady Aybinder. $50,000 for Semyon Aguvayev. $35,000 for Regina Aybinder. Deft. did not answer the Summons and Complaint, and Pltfs.' motion for default judgment was granted.

Pltf. Atty: Adam H. Stone of Cheriff, Cheriff & Fink, Manhattan, Deft. Atty: No appearance

Facts: The accident occurred on East 18th St. near Ave. T in Brooklyn. Pltf. Gennady Aybinder, age 14 at the time, was loading packages in Pltf. Semyon Aguvayev's car while Aguvayev and Regina Aybinder were waiting in the front seat. Pltfs. claimed that Deft. Fiore's car sped around the corner, and the driver lost control and struck Gennady and then Pltfs.' car. The driver of Deft.'s car left the scene, but Pltfs. were able to note the license plate number. Deft. did not answer the Summons and Complaint, and Pltfs.' motion for default judgment was granted.

Injuries: Gennady Aybinder (age 14 $100,000 award) herniated disc at L3-4; bulging discs at C3-4, C4-5, C6-7; cervical and lumbar radiculopathy; concussion. Semyon Aguvayev (a 31-year-old student $ 50,000 award) bulging discs at L4-5, L5-S1, C4-5, and C5-6, impinging on the thecal sac; cervical and lumbar radiculopathy. Regina Aybinder (19-year-old student $35,000 award) cervical and lumbar strain/sprain with cervical and lumbar radiculopathy. Demonstrative evidence: police report; doctor's affirmations; medical records. Pltf. Expert: Dr. Alexander Berenblit, neurologist, Brooklyn (by affirmation). Deft. Expert: There was no expert testimony for Deft.



Barbara Ann Cesaro-Benson v. Ryder Truck Rental, Inc. and " John Doe", Settlement, Southern District

Pltf. Atty: Bruce J. Cheriff of Cheriff, Cheriff & Fink, P.C., Manhattan

This $85,000 settlement, immediately before summations, was for a 23- year-old New York Thruway toll collector who was struck by a Ryder truck while she was crossing the Toll Plaza in New Rochelle. Pltf. claimed that the truck left the scene after the accident without stopping. Deft. denied that one of its trucks was involved in the accident. Injuries: chondromalacia of the left knee; fractured coccyx; exacerbation of pre-existing asymptomatic pars fracture in the back. Pltf. missed 9 months of work. She underwent knee surgery. Deft. contended that Pltf.'s low back pain was caused by a subsequent car accident, denied that Pltf.'s other injuries were caused by the accident at bar, and denied that Pltf. had fractured her coccyx. Demonstrative evidence: models of the spinal column and knee; photograph of the accident scene; X-rays; hospital records. Offer: $50,000 before trial: demand: $75,000.

Pltf. Experts: Sergeant Christopher Fiore, accident reconstruction, Albany (also was one of the responding State troopers); Dr. John Rigney, radiologist, Chappaqua; Dr. Stanley Sonn, treating chiropractor, Bronx; Dr. Howard Balensweig, orth. surg., Manhattan. Deft. Expert: Dr. William Kulak, orth. surg., Manhattan.


The following case was succesfully argued before the Appellate Division, Second Department, by Kenneth S. Fink, of Cheriff Cheriff & Fink, P.C. The case is reprinted here courtesy of West.

Pizzi v. Anzalone, 689 N.Y.S.2d 224, N.Y.A.D. 2 Dept.,1999 - May 3, 1999.

(1999 N.Y. Slip Op. 03919)

Plaintiff in personal injury action moved to set aside verdict in defendants' favor, and for new trial. The Supreme Court, Kings County, G. Aronin, J., granted motion. Defendants appealed, and the Supreme Court, Appellate Division, held that trial court did not improvidently exercise its discretion by setting aside verdict, and ordering new trial, in light of defendant's posttrial admissions that he testified untruthfully at trial as to factual matters material to the verdict.


West Headnotes

Key Cite Notes

275 New Trial

275II Grounds

275II(G) Surprise, Accident, Inadvertence, or Mistake

275k90 k. Testimony and Conduct of Witness. Most Cited Cases

Trial court did not improvidently exercise its discretion by granting personal injury plaintiff's motion to set aside verdict on basis that it had been procured by fraud, misrepresentation, or other misconduct, and ordering new trial, where defendant made posttrial admissions that he testified untruthfully at trial as to factual matters material to the verdict. McKinney's CPLR 5015(a), par. 3.

**224 Gladstein & Isaac, New York, N.Y. (Dennis M. Karsch, Emily Diamond, and Brian J. Isaac of counsel), for appellants.

Cheriff, Cheriff & Fink, P.C., New York, N.Y. (Bernard Cheriff and Kenneth S. Fink of counsel), for respondent.


***1 *374 In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (G. Aronin, J.), dated March 5, 1998, which granted the plaintiff's motion, inter alia, pursuant to CPLR 5015(a)(3) to set aside a verdict in their favor and against him, and ordered a new trial.

ORDERED that the order is affirmed, with costs.

In light of the posttrial admissions by the defendant Anthony Anzalone that he testified untruthfully at trial as to factual matters material to the verdict, the Supreme Court did not *375 improvidently exercise its discretion in granting the plaintiff's motion, inter alia, pursuant to CPLR 5015(a)(3) to set aside the verdict on the ground that it had been procured by fraud, misrepresentation, or other misconduct, and ordering a new trial (see, LaPaglia v. Sears Roebuck & Co., 143 A.D.2d 173, 531 **225 N.Y.S.2d 623; Trapp v. American Trading & Prod. Corp., 66 A.D.2d 515, 414 N.Y.S.2d 11; Cohen v. Crimenti, 24 A.D.2d 587, 262 N.Y.S.2d 364).

N.Y.A.D. 2 Dept.,1999.


Copr. (c) West 2001 No Claim to Orig. U.S. Govt. Works

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