DiCarlo v. Metropolitan Transp. Auth.
Opinion
DiCarlo v Metropolitan Transp. Auth.
2026 NY Slip Op 04836
August 5, 2026
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
Luca DiCarlo, respondent,
v
Metropolitan Transportation Authority, et al., appellants.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on August 5, 2026
2024-07925, (Index No. 511848/19)
Angela G. Iannacci, J.P.
Valerie Brathwaite Nelson
Paul Wooten
Janice A. Taylor, JJ.
Anna J. Ervolina (Mauro Lilling Naparty LLP, Woodbury, NY [Katherine Herr Solomon and Kathryn M. Beer], of counsel), for appellants.
Liakas Law, P.C. (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac, Paul H. Seidenstock, and Jillian Rosen], of counsel), for respondent.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendants appeal from a judgment of the Supreme Court, Kings County (Heela D. Capell, J.), dated May 21, 2024. The judgment, upon a jury verdict on the issue of liability finding the defendants 70% at fault in the happening of the accident and the plaintiff 30% at fault, and upon a jury verdict on the issue of damages finding that the plaintiff sustained damages in the principal sums of $1,250,000 for past pain and suffering, and $3,680,000 for future pain and suffering over a period of 46 years, reduced to 10 years pursuant to CPLR 5041(e), is in favor of the plaintiff and against the defendants in the principal sum of $3,451,000.
ORDERED that the judgment is modified, on the facts, by deleting the provisions thereof awarding damages for past pain and suffering and future pain and suffering; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for a new trial on the issue of damages for past pain and suffering and future pain and suffering and for the entry of an appropriate amended judgment thereafter, unless within 30 days after service upon the plaintiff of a copy of this decision and order with notice of entry, the plaintiff serves and files in the office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting to reduce the amount of damages for past pain and suffering from the principal sum of $1,250,000 to the principal sum of $750,000 and for future pain and suffering from the principal sum of $3,680,000 to the principal sum of $1,000,000, and to the entry of an appropriate amended judgment accordingly; in the event that the plaintiff so stipulates, the judgment, as so reduced and amended, is affirmed, without costs or disbursements.
On the morning of March 21, 2019, the plaintiff was crossing Fulton Street under the mistaken belief that he had the right-of-way, when he was struck by an oncoming B52 bus. The impact caused the plaintiff to fall and he sustained various injuries, including an epidural hematoma, a type of traumatic brain injury, that required surgery and hospitalization for approximately 11 days.
Thereafter, the plaintiff commenced this personal injury action against the defendants, Metropolitan Transportation Authority, New York City Transit Authority, and Roberto Perez, the bus operator. At the close of the liability phase of trial, the jury found the defendants 70% at fault [*2]in the happening of the accident and the plaintiff 30% at fault. The defendants orally moved to set aside the jury's verdict, which the Supreme Court denied.
At a jury trial on the issue of damages, the plaintiff presented testimony and other evidence that he continued to suffer from significant headaches, approximately five years after the accident, at least a few times a month. The plaintiff described how the headaches negatively affected his social and professional life as, among other things, he could no longer play recreational soccer, he avoided noisy settings, and he was forced to retire from military service—although he remained employed full-time as a data clerk. The plaintiff's neurosurgeon testified that the headaches were likely permanent.
At the conclusion of the trial on the issue of damages, the jury found that the plaintiff sustained damages in the principal sums of $1,250,000 for past pain and suffering, and $3,680,000 for future pain and suffering over a period of 46 years, which was reduced to 10 years by the Supreme Court pursuant to CPLR 5041(e). The defendants orally moved to set aside the jury's verdict on the issue of damages as excessive, which the court denied. The court issued a judgment dated May 21, 2024, upon the jury verdicts, in favor of the plaintiff and against the defendants in the principal sum of $3,451,000. The defendants appeal from the judgment on the issues of the apportionment of liability and damages.
"The apportionment of fault among the parties is generally an issue of fact for the jury, and the jury's apportionment of fault should not be set aside unless it could not have been reached based upon a fair interpretation of the evidence" (Plazas v Sherlock, 228 AD3d 788, 790 [internal quotation marks omitted]; see Schleger v Jurcsak, 186 AD3d 771, 772). "It is for the jury to make determinations as to the credibility of witnesses, and great deference in this regard is accorded to the jury, which had the opportunity to see and hear the witnesses" (Plazas v Sherlock, 228 AD3d at 791 [internal quotation marks omitted]).
"A driver . . . has a statutory duty to use due care to avoid colliding with pedestrians on the roadway (see Vehicle and Traffic Law § 1146), as well as a common-law duty to see that which he or she should have seen through the proper use of his or her senses" (Lieb v Jacobson, 202 AD3d 1072, 1073 [alterations and internal quotation marks omitted]).
Here, a fair interpretation of the evidence supported the jury's apportionment of fault between the parties, in that the bus operator failed to see that which he should have seen through the proper use of his senses. Accordingly, we affirm so much of the judgment as, upon the jury verdict on the issue of liability, attributed 70% of the fault for the happening of the accident to the defendants (see Schneider v Hanasab, 209 AD3d 684, 686-687).
"'The amount of damages to be awarded to a plaintiff for personal injuries is a question for the jury, and its determination will not be disturbed unless the award deviates materially from what would be reasonable compensation'" (Tarpley v New York City Tr. Auth., 177 AD3d 929, 932 [internal quotation marks omitted], quoting Nayberg v Nassau County, 149 AD3d 761, 762; see CPLR 5501[c]). "'The "reasonableness" of compensation must be measured against relevant precedent of comparable cases'" (Aguilar v Graham Terrace, LLC, 237 AD3d 1149, 1150-1151, quoting Kayes v Liberati, 104 AD3d 739, 741). "Although prior damage awards in cases involving similar injuries are not binding upon the courts, they guide and enlighten them with respect to determining whether a verdict in a given case constitutes reasonable compensation" (id. at 1151 [internal quotation marks omitted]).
Here, notwithstanding the serious nature of the injuries sustained by the plaintiff, the verdict as to damages for past pain and suffering was excessive and deviated materially from what would be reasonable compensation (cf. Kusulas v Saco, 134 AD3d 772, 774; Stanisich v New York City Tr. Auth., 73 AD3d 737, 738; Hernandez v Vavra, 62 AD3d 616, 617; Bartlett v Snappy C
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