New York Injury Lawyers Blog

At trial in Kings County Supreme Court, a jury found Defendant, New York City Transit Authority, 70% at fault when Plaintiff, Clyde Davison, was struck by a train. Mr. Davison suffered a fractured clavicle and a fractured scapula as a result of the accident. The same jury awarded Mr. Davison $150,000 for past pain and suffering and $66,000 for future pain and suffering.

Plaintiff appealed arguing that the awards for pain and suffering were unreasonably low given the severity of the injuries. The Appellate Division, Second Department, agreed. The court increased damages on past pain and suffering from the principal sum of $150,000 to $275,000 and future pain and suffering from the principal sum of $66,000 to $175,000.

As a result, Mr. Davison will either have a new trial on damages or the Defendant will agree to pay at total of $315,000 ($192,500 ($275,000 x .70) for past pain and suffering and $122,500 ($175,000 x .70) for future pain and suffering).

Davison v New York City Tr. Auth., 2011 NY Slip Op 06244 (2d Dept. 2011).

In a recent motor vehicle accident case before the NYS Appellate Division, Second Department, named Vaz v. New York City Transit Authority, the Court ordered a new trial on liability holding that the trial court improperly permitted the Defendant to introduce previously undisclosed evidence. During cross-examination of the Plaintiff, the trial court allowed the Defendant to introduce into evidence a "Motor Vehicle Accident Form" (an MV104 form), prepared by the Plaintiff at her physician's office shortly after the accident. The purpose was to impeach the Plaintiff's credibility as to her version of how the car accident occurred.

The Appellate Division ruled that the Supreme Court improperly permitted the Defendant to introduce the MV104 into evidence since the Defendant obtained the document prior to the commencement of the action and failed to disclose it to Plaintiff during discovery. The Court reasoned that "contrary to the Supreme Court's conclusion, the Defendant was required to disclose the MVA form, which constituted the Plaintiff's 'own statement' (CPLR 3101[e]), upon the Plaintiff's demand prior to trial (see CPLR 3101[a], [e])." Instead, Defendant withheld the document until the middle of the trial; and could not offer an excuse for its failure to produce the document earlier. Because the central issue in the trial was the respective parties' credibility, this error could not be considered harmless. As such, the Second Department reversed determining that the Supreme Court should have granted that branch of the Plaintiff's motion to set aside the verdict and to commence a new trial on the issue of liability.

Vaz v New York City Tr. Auth., 85 AD3d 902 (2d Dept. 2011).