Reinhart v. Long Island Lighting Co.

100 A.D.2d 755, 474 N.Y.S.2d 22, 1984 N.Y. App. Div. LEXIS 17852

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 3, 1984
• Status: Published

Opinions

Judgment of the Supreme Court, New York County (Alvin Klein, J.), entered on May 20, 1983, which, inter alia, following the jury trial, awarded plaintiff Theodore Schreiner the sum of $1,000,000, plus costs, disbursements and interest for a total of $1,038,261.70 and awarded plaintiff Ethel Schreiner the sum of $100,000, plus interest, for a total of $103,725, is affirmed, with costs and disbursements. H The evidence at the trial held in connection with this matter established that plaintiff Theodore Schreiner sustained many severe and permanently disabling injuries as a result of the accident which occurred on May 15, 1980 when the scaffold upon which he was standing collapsed. Since this court had previously granted summary judgment to plaintiffs on the question of liability, the only issue before the jury involved the amount of the damages to be recovered. (Reinhart v Long Is. Light. Co., 91 AD2d 571.) In that regard, it was amply demonstrated, and the dissent does not disagree, that plaintiff was seriously hurt and suffered a series of painful and complex injuries, including multiple spinal and rib fractures and dislocations, a fractured pelvis, contused left kidney, and a collapsed lung. During the approximately 40-day period of his hospitalization, he was in constant pain and underwent, among other surgical procedures, a bilateral spinal fusion. H In fact, the primary, if not sole, dispute in the instant case concerns the course of plaintiff’s convalescence and the extent of his recovery. The defendants tend to minimize the lasting effect of plaintiff’s injuries, and the dissent appears to accept this position. According to our dissenting brethren, the healing process, except for one area of contention, was excellent, and some eight months after the accident, plaintiff had ceased using a brace and the attending physician had indicated that he could return to work on a limited basis. In the one area of contention noted by the dissent, they refer to the testimony of Dr. Louis Katz, a defense witness who examined plaintiff at the request of Dr. Richard S. Goodman, an orthopedist who was called by plaintiff. The dissent seems to perceive significance in plaintiff’s failure to call Dr. Katz himself and finds Dr. Katz’ assertion that plaintiff’s spinal fusion was healing well more persuasive than Dr. Goodman’s conclusion that X rays revealed the onset of a separation at the site of the spinal fracture. 11 It is, however, the function of the jury, not this court, to assess the weight of the evidence and the credibility of the witnesses. (Dominguez v Manhattan & Bronx Surface Tr. Operating Auth., 46 NY2d 528.) Based upon the proof elicited at trial, the jury could reasonably choose to believe Dr. Goodman’s description of plaintiff’s medical condition and reject the evaluation made by Dr. Katz. Certainly, it is not the responsibility of this court to substitute its judgment concerning the severity of plaintiff’s spinal injury for that of the jury, which had the opportunity to hear the testimony first hand, observe the demeanor of the witnesses and review conflicting versions of the facts. The evidence at trial herein was sufficient to support plaintiff’s allegation that as a result of the accident, he is totally and permanently disabled from employment, that he has been, and continues to be, afflicted with constant pain and that his mobility has been greatly impaired. In view of the plaintiff’s persistent disability, suffering and economic loss, the jury’s verdict was not so excessive as to shock the conscience of the court. (See Neal v Rainbow House Fruits, 87 AD2d 511.) Concur — Ross, J. P., Milonas and Alexander, JJ.