New York Appellate Division Reports

HERRERA v. MARTIN, 2004-06255 [2d Dept 11-14-2006] 2006 NY
Slip Op 08213 SOFIA HERRERA, ET AL., respondents, v.
CARLISLE ST. MARTIN, ET AL., appellants, ET AL.,
defendants. 2004-06255. Appellate Division of the Supreme
Court of New York, Second Department. Decided November 14,
2006.

In an action to recover damages for medical malpractice,
etc., the defendants Carlisle St. Martin, Richard
Gasalberti, and Rafael Vargas, separately appeal from a
judgment of the Supreme Court, Queens County (Thomas, J.),
entered June 1, 2004, which, upon a jury verdict, is in
favor of the plaintiffs and against them in the principal
sum of $6,447,230, representing $130,000 for past medical
expenses, $1,500,000 for past pain and suffering,
$2,234,500 for future medical expenses for 14 years, $2,730
for future rehabilitation services for 14 years, $2,500,000
for future pain and suffering over 10 years, and $80,000
for loss of services and directing that 33.3% of the
interest on the judgment shall accrue to the plaintiffs’
counsel.

Garson, Gerspach, De Corato & Cohen, LLP (Mauro Goldberg &
Lilling, LLP, Great Neck, N.Y. [Caryn L. Lilling and
Katherine Herr Solomon] of counsel), for appellant Carlisle
St. Martin.

Bartlett, McDonough, Bastone & Monaghan, LLP, White
Plains, N.Y. (Edward J. Guardaro, Jr, and Gina L. Bernardi
of counsel), for appellant Richard Gasalberti.

Gordon & Silber, P.C., New York, N.Y. (David Henry Sculnick
of counsel), for appellant Rafael Vargas.

Rheingold, Valet, Rheingold, Shkolnik & McCartney, LLP,
New York, N.Y. (Simcha D. Schonfeld and Paul D. Rheingold
of counsel), for respondents.

Before: THOMAS A. ADAMS, J.P., PETER B. SKELOS, STEVEN W.
FISHER, JOSEPH COVELLO, JJ.

DECISION & ORDER

ORDERED that the judgment is modified, on the law, the
facts, and in the exercise of discretion, by deleting the
provisions thereof awarding the plaintiff Sofia Herrera
damages for past and future pain and suffering and
directing that 33.33% of the interest on the judgment shall
accrue to the plaintiffs’ counsel, and by substituting
therefor a provision directing that a portion of the
interest on the judgment shall accrue to the plaintiffs’
counsel in accordance with Judiciary Law § 474-a; as
so modified, the judgment is affirmed, without costs or
disbursements, and the matter is remitted to the Supreme
Court, Queens County, for a new trial on the issue of
damages for past and future pain and suffering only, unless
within 30 days after service upon the plaintiff Sofia
Herrera of a copy of this decision and order, she serves
and files in the office of the Clerk of the Supreme Court,
Queens County, a written stipulation consenting to reduce
the verdict as to damages for past pain and suffering from
the sum of $1,500,000 to the sum of $1,000,000, and the
verdict as to damages for future pain and suffering from
the sum of $2,500,000 to the sum of $2,000,000, and to the
entry of an appropriate amended judgment accordingly and in
compliance with CPLR article 16 as provided herein; in the
event that the plaintiff Sofia Herrera so stipulates, then
the judgment, as so modified, reduced, and amended, is
affirmed, without costs or disbursements.

The jury in this case determined that the defendants
Carlisle St. Martin and Richard Gasalberti departed from
accepted standards of medical care, and that the defendant
Rafael Vargas departed from accepted standards of
chiropractic care, when they each separately failed to
prescribe a magnetic resonance imaging study for the
plaintiff Sofia Herrera (hereinafter the plaintiff), who
was experiencing debilitating and excruciating lower back
pain for more than one year. The jury further found that
this departure caused a delay in the diagnosis of the
plaintiff’s malignant tumor which resulted in her injuries,
including total paralysis in her lower extremities, and
bowel and bladder incontinence.

Contrary to the contentions raised by Vargas and
Gasalberti, the jury’s verdict was rational (see Cohen v.
Hallmark Cards, 45 NY2d 493, 499; Robinson v. City of New
York, 300 AD2d 384; Cavlin v. New York Med. Group, P.C.,
286 AD2d 469; Simmons v. East Nassau Med. Group, 260 AD2d
463, 464), and contrary to Gasalberti’s contention, it was
based on a fair interpretation of the evidence (see Stewart
v. Olean Med. Group, P.C., 17 AD3d 1094; Kiker v. Nassau
County, 175 AD2d 99, 101).

Contrary to St. Martin’s contention, the jury verdict
apportioning liability among the defendants as follows:
41.5% each to Vargas and himself, and 17% to Gasalberti,
was based upon a fair interpretation of the evidence and
therefore should not be set aside (see Collins v. Seligman,
276 AD2d 662).

Moreover, when evaluating whether an assessment of damages
is excessive, this court must determine whether it
deviates materially from what would be reasonable
compensation (see CPLR 5501[c]; Iovine v. City of New York,
286 AD2d 372). We conclude that the damages awarded here
were excessive to the extent indicated.

Further, the order and judgment erroneously omitted to
take into account the jury’s apportionment of liability
among the defendants, none of whom was found to be more
than 50% liable for the plaintiff’s injuries. This had the
effect of erroneously holding all three defendants jointly
and severally liable for the entire noneconomic damages
award, rather than just severally liable for such damages,
in violation of CPLR 1601(1). Accordingly, after a new
trial involving noneconomic damages or, in the event that
the plaintiff stipulates to a reduction of said damages as
provided herein, the amended judgment shall reflect the
jury’s apportionment of liability, in compliance with CPLR
1601(1).

The judgment does not comply with Judiciary Law §
474-a(3) insofar as it permits the plaintiff’s attorney to
recover 33.33% of the accrued interest on the judgment,
rather than basing compensation on the sliding scale
provided in Judiciary Law § 474-a(2). Accordingly,
we modify the judgment to reflect that counsel’s
compensation shall be in accordance with that statute.

The defendants’ remaining contentions are unpreserved for
appellate review or without merit.

ADAMS, J.P., SKELOS, FISHER and COVELLO, JJ., concur.