McKenna v. Henry V Murray Senior LLC
Opinion
McKenna v Henry V Murray Senior LLC 2025 NY Slip Op 32368(U)
July 7, 2025
Supreme Court, New York County Docket Number: Index No. 157439/2016 Judge: Mary V. Rosado
Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.
NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 07/07/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
PRESENT: HON. MARY V. ROSADO PART 33M Justice
------------------------------------ ------X INDEX NO. 157439/2016 TROY MCKENNA,
MOTION DATE 02/05/2025 Plaintiff,
00_7_ __
MOTION SEQ. NO. _ _ _
- V -
HENRY V MURRAY SENIOR LLC,PLAZA CONSTRUCTION GROUP, INC.,PLAZA CONSTRUCTION DECISION + ORDER ON LLC MOTION
Defendants.
--------------------------------------------------------- --X
The following e-filed documents, listed by NYSCEF document number (Motion 007) 234, 235, 236, 237, 238,239,240,241,242,243,244,245 were read on this motion to/for POST JUDGMENT OTHER
Upon the foregoing documents, and after oral argument, which took place on May 27, 2025, where Daniel M. Weir, Esq. and S. Wade Turnbull, Esq. appeared for Plaintiff Troy McKenna ("Plaintiff') and James F. Burke, Esq. appeared for Defendants Henry V. Murray Senior LLC, Plaza Construction Group, Inc., and Plaza Construction LLC (collectively "Defendants"), Defendants' motion to vacate the jury's awards for past and future pain and suffering, future medical expenses, and future lost wages as against the weight of the evidence, or alternatively reducing the aforementioned awards as excessive, is denied.
I. Background
On August 26, 2016, Plaintiff, a 25-year-old union iron worker, suffered a labral tear to his left hip after being injured on a construction site at 111 Murray Street, New York, New York. He sued Defendants to recover for personal injury under various provisions of the New York Labor Law and was granted summary judgment on the issue ofliability on his Labor Law§ 241(6) claim on October 13, 2021. The matter proceeded to trial, and after seven days, on December 23, 2024,
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the jury returned a verdict. The verdict awarded Plaintiff $3,000,000, consisting of $500,000 for past lost earnings, $1,300,000 for future lost earnings over the span of30 years, $600,000 for future medical expenses over the span of 30 years, $200,000 for past pain and suffering, and $400,000 for future pain and suffering over the span of 30 years. Defendants challenge only the amount of damages Plaintiff was awarded and ask this Court to set aside the verdict as against the weight of the evidence, or to reduce the total amount of damages as excessive. Plaintiff opposes. For the following reasons, Defendants' motion is denied.
II. Discussion
A. Standard
In order for this Court to disregard the jury's verdict, the weight of the evidence must be '"so preponderate[d] in favor of the [moving party] that [it] could not have been reached on any fair interpretation of the evidence"' (Kil/on v Parrotta, 28 NY3d 101, 107 [2016] quoting Lolik v Big V Supermarkets, Inc., 86 NY2d 744, 746 [1995]). The jury is to be afforded great deference, and the jurors may reject and assess the credibility of witnesses (Rozon v Schottenstein, 204 AD3d 94 [1st Dept 2022]). In determining whether a verdict is against the weight of the evidence, the non-moving party is afforded "every inference which may properly be drawn from the facts presented, and the facts must be considered in the light most favorable to the nonmovant" (KBL, LLP v Community Counseling & Mediation Services, 123 AD3d 488 [1st Dept 2014] quoting Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]). Where there is conflicting testimony, the jury is entitled to determine which fact witnesses it finds most credible (Gonzalez v NYC Department of Citywide Administrative Services, 190 AD3d 416 [1st Dept 2021]). Simply because there is some evidence which may support "each party's position with regard to liability does not mean that the
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jury exceed[s] its province in determining which evidence to accept and which to reject" (Demetro v Dormitory Authority, l 99 AD3d 605 [1st Dept 2021 ]).
B. Future Medical Expenses Defendants are incorrect in their argument that there is no basis for an award of $600,000 for future medical expenses over the span of 30 years. The jury heard testimony from Plaintiff that although he remains physically active, on days that he engaged in physical activity he feels aggravated pain in his hip at the end of the day (Tr. at 147). Moreover, the medical evidence showed that Plaintiff, who is only thirty-five years old, has arthritis in his hip, which will continue to build up to the point he will need a hip replacement (Tr. at 148-49). Dr. Kaplan, Plaintiffs treating physician, testified that Plaintiff presented symptoms of arthritis with continued pain associated with squatting, bending, and lifting (Tr. at 3 81 ). Dr. Kaplan further testified that because of pain associated with Plaintiffs gradually progressing hip arthritis, he will likely need a total hip replacement at the age of 50 (Tr. at 385). Dr. Kaplan testified that because a hip replacement only lasts about fifteen to twenty years, Plaintiff would likely need another hip surgery between the ages of sixty-five and seventy (Tr. at 386). Dr. Sokolof testified that assuming a 60-year growth rate, Plaintiffs two future operations alone would cost $833,630. There was no countervailing life care plan expert or economist called by Defendants.
Given this testimony, the jury's verdict was not against the weight of the evidence. The jury was entitled to discredit Defendants' evidence and credit Plaintiff and his experts' testimony in evaluating its award. Although there is evidence that Plaintiff remains physically active, the jury was entitled to credit Plaintiffs experts' opinions that Plaintiffs injury would continue to mature and progress as he got older, eventually requiring further surgeries and becoming more debilitating. As the jury is entitled to great deference in its evaluation of the evidence, and due to
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the conflicting expert testimony regarding Plaintiffs progressing arthritis, need for two future hip surgeries, and the length of Plaintiffs life expectancy, this Court declines to disturb the jury's future medical expenses award (see e.g. Morrobel v Alicea, 236 AD3d 571, 571-72 [1st Dept 2025] ["[t]hat some evidence supported each party's position does not mean that the jury exceeded its province in determining which evidence to accept and which to reject"]; see also Greenidge v Steele, 233 AD3d 477 [1st Dept 2024] [conflicting expert testimony gave jury sufficient basis to evaluate plaintiffs injury]).
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