Nardone v. Tow Rific Auto Serv., LLC

Opinion

Nardone v Tow Rific Auto Serv., LLC

2026 NY Slip Op 04866

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.

Eugene Nardone, et al., appellants,

v

Tow Rific Auto Service, LLC, respondent.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 5, 2026

2024-05246, (Index No. 54312/21)

Colleen D. Duffy, J.P.

Linda Christopher

Barry E. Warhit

Elena Goldberg Velazquez, JJ.

Basch & Keegan, LLP, Kingston, NY (Derek J. Spada of counsel), for appellants.

Kessler Law Offices, Westtown, NY (Leonard Kessler of counsel), for respondent.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Edward T. McLoughlin, J.), dated June 11, 2024. The order denied the plaintiffs' motion pursuant to CPLR 4404(a) to set aside, as inadequate, so much of a jury verdict as awarded the plaintiff Eugene Nardone only $40,000 for past pain and suffering and $0 for future pain and suffering, and as awarded the plaintiff Lindsay Nardone the sum of only $5,000 for past loss of consortium, and for a new trial on the issue of those damages.

ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof denying that branch of the plaintiffs' motion which was pursuant to CPLR 4404(a) to set aside, as inadequate, so much of the jury verdict as awarded the plaintiff Lindsay Nardone the sum of $5,000 for past loss of consortium, and for a new trial on the issue of those damages, and substituting therefor a provision granting that branch of the motion, and the matter is remitted to the Supreme Court, Dutchess County, for a new trial on the issue of damages for past loss of consortium, unless within 30 days after service upon the defendant of a copy of this decision and order, the defendant serves and files in the office of the Clerk of the Supreme Court, Dutchess County, a written stipulation consenting to increase the award of damages for past loss of consortium from the sum of $5,000 to the sum of $20,000; as so modified, the order is affirmed, with costs to the plaintiffs.

The plaintiff Eugene Nardone (hereinafter Eugene), and his wife, Lindsay Nardone (hereinafter Lindsay), suing derivatively, commenced this action against the defendant, inter alia, to recover damages for personal injuries the plaintiffs alleged Eugene sustained when he fell on property leased and controlled by the defendant. The action proceeded to a jury trial on the issue of damages. The evidence at trial established that Eugene sustained a tear to his right rotator cuff as a result of the accident, which required him to undergo an arthroscopic surgery on his right shoulder and to attend physical therapy. The jury returned a verdict, among other things, awarding Eugene the sum of $40,000 for past pain and suffering and $0 for future pain and suffering and awarding Lindsay the sum of $5,000 for past loss of consortium. Thereafter, the plaintiffs moved pursuant to CPLR 4404(a) to set aside so much of the jury verdict as awarded Eugene $40,000 for past pain and suffering and $0 for future pain and suffering, and as awarded Lindsay the sum of $5,000 for past loss of consortium and for a new trial on the issue of those damages. The defendant opposed. In an order dated June 11, 2024, the Supreme Court denied the plaintiffs' motion. The plaintiffs appeal.

"A jury verdict on the issue of damages may be set aside as contrary to the weight of the evidence only if the evidence on that issue so preponderated in favor of the movant that the jury could not have reached its determination on any fair interpretation of the evidence" (Carter v City of New Rochelle, 208 AD3d 843, 845; see CPLR 4404[a]; Enriquez v Metropolitan Transp Auth., 239 AD3d 598, 600). "If the verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view" (Angeles v County of Suffolk, 222 AD3d 923, 925 [internal quotation marks omitted]). "'A jury's determination with respect to awards for past and future pain and suffering will not be set aside unless the award deviates materially from what would be reasonable compensation'" (Lara v Arevalo, 205 AD3d 700, 702, quoting Coleman v Karimov, 173 AD3d 669, 671; see CPLR 5501[c]). "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" (Rojas v Brabant, 192 AD3d 934, 936; see Lara v Arevalo, 205 AD3d at 702-703).

Here, the jury's award of $0 for future pain and suffering was not contrary to the weight of the evidence, as the evidence concerning the extent and permanency of Eugene's injury did not so preponderate in the plaintiffs' favor that it could not have been reached on any fair interpretation of the evidence (see Enriquez v Metropolitan Transp. Auth., 239 AD3d at 600; Hadjidemetriou v Juarez, 187 AD3d 1156, 1157-1158). Further, considering a review of comparable precedent, the award for past pain and suffering did not deviate materially from what would be reasonable compensation (see Rozmarin v Sookhoo, 172 AD3d 1415, 1418; Iovino v Kaplan, 145 AD3d 974, 977). However, the award for past loss of consortium deviated materially from what would be reasonable compensation to the extent indicated herein (see Stanisich v New York City Tr. Auth., 73 AD3d 737, 737-738; Lipshultz v K & G Indus., Inc., 18 AD3d 515, 516).

DUFFY, J.P., CHRISTOPHER, WARHIT and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court