On July 09, 2015 a
Order
was filed
involving a dispute between
Allison Franzese,
Paul Franzese,
and
Doron I. Ilan Md,
Gideon Yoeli Md,
Jamaica Hospital Medical Center,
Manhattan Medical,
Premier Orthopaedics,
for Medical Malpractice
in the District Court of Queens County.
Preview
FILED: QUEENS COUNTY CLERK 11/15/2019 03:05 PM INDEX NO. 707170/2015
NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 11/15/2019
Short Form Order
NEW YORK SUPREME COURT - QUEENS COUNTY
Present: HONORABLE Joseph J. Esposito IA Part 6
Justice
PAUL FRANZESE, Index No. 707170/2015
Plaintiff,
Motion Date: 10/7/19
-against-
Motion Sequence No.4
DORON I. ILAN, M.D., PREMIER
ORTHOPAEDICS OF WESTCHESTER AND
ROCKLAND, P.C.,
Defendants.
The following papers numbered 1 to 9 read on this motion by
defendants, Doron I. Ilan, M.D., Premier Orthopaedics of
Westchester and Rockland, P.C., for an order, pursuant to
CPLR Section 4404(b): (1) setting aside the verdict based
upon juror misconduct; (2) setting aside the verdict based
upon.the court's misreading of the medical malpractice
charge; (3) setting aside the verdict as excessive and (4)
reducing the verdict amount and (5) for such other and
further relief as this court may deem just and proper; Cross
motion by plaintiff for an order pursuant to CPLR Section
4404 and 5501, increasing the future pain and suffering
amount to $850,000.00 or directing a new trial on damages.
Papers
Numbered
Notice of Motion - Affidavits - Exhibits 1-4
Notice of Cross-Motion-Affidavits 5-7
Affirmation in Reply 8-9
Upon the foregoing papers, it is ORDERED that the
motion in chief is denied in its entirety.
Similarly the cross motion is denied.
This medical malpractice action commenced on April 25,
1 of 3
FILED: QUEENS COUNTY CLERK 11/15/2019 03:05 PM INDEX NO. 707170/2015
NYSCEF
se' DOC. NO. 106 RECEIVED NYSCEF: 11/15/2019
2019 and resulted in a verdict in favor of plaintiff on May
2, 2019 for past pain and suffering in the sum of
$550,000.00 and future pain and suffering for ten years in
the sum of $400,000.00 (see Exhibit A to motion in chief).
The jury found that Dr. Ilan departed from accepted standard
of medical practice "by not performing surgery to repair Mr.
Franzese's ulnar collateral ligament on March 18, 2013 or
after?" The jury further found that this deviation was a
substantial factor in causing Mr. Franzese's injuries. This
was the only deviation that the jury found. Now, defendants
attempt to set aside the jury verdict alleging juror
misconduct.
In support of their motion defendants allege that JoAnn
Mesisca, Juror Number 1 failed to disclose an experience she
had when her son had not received proper medical care until
he went to a second doctor (see Mendys Affirmation in
Support at paragraph 26). This baseless accusation is
belied by Ms. Mesisca's affidavit in opposition which states
in relevant part:
I spoke outside of the jury room to plaintiff's
and defendants' counsel and discussed with
them both an experience my stepdaughter's
husband had with a physician related to a
kidney stones (sic)that required that he see a
second physician for appropriate treatment.
I do not have a son and have never been
involved in my stepdaughter's husband's medical
care.
The record is devoid of any juror misconduct. A
verdict shall not be set aside as the result of purported
juror misconduct absent proof of substantial prejudice (see
Snediker v County of Orange, 58 NY2d 647 (1982]).
As such, the branch of defendants' motion seeking an
order setting aside the verdict due to alleged juror
misconduct is denied.
The branch of defendants' motion to set aside the
verdict due to the misreading of the charge on medical
malpractice is similarly denied and completely devoid of
merit.
2
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FILED: QUEENS COUNTY CLERK 11/15/2019 03:05 PM INDEX NO. 707170/2015
NYSCEF
• e- DOC. NO. 106 RECEIVED NYSCEF: 11/15/2019
The remaining branch of defendants' motion to set aside
the verdict as excessive or reduce same is denied.
Plaintiff's cross motion seeking an order increasing
the award for future pain and suffering from $400,000.00 to
$850,900.00 is denied. It is well settled that a jury's
award regarding awards for past and future pain and
suffering shall not be set aside unless the award deviates
materially from what would be reasonable compensation (see
McEachin v City of New York, 137 AD3d 753 citations omitted
[2 Dept 2016]. The court finds that the amount awarded by
the jury for future pain and suffering was reasonable and
should not be disturbed.
The foregoing constitutes the decision and order of
this court.
A copy of this order is being emailed to both sides
this date.
Dated: November 12, 2019
JOSEPH OSITO, J.S.
FILED
NOV 1 5 2019
COUNTY CLERK
QUEENS COUNTY
3 of 3
Document Filed Date
November 15, 2019
Case Filing Date
July 09, 2015
Category
Medical Malpractice
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FILED: QUEENS COUNTY CLERK 11/15/2019 03:05 PM INDEX NO. 707170/2015 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 11/15/2019 Short Form Order NEW YORK SUPREME COURT - QUEENS COUNTY Present: HONORABLE Joseph J. Esposito IA Part 6 Justice PAUL FRANZESE, Index No. 707170/2015 Plaintiff, Motion Date: 10/7/19 -against- Motion Sequence No.4 DORON I. ILAN, M.D., PREMIER ORTHOPAEDICS OF WESTCHESTER AND ROCKLAND, P.C., Defendants. The following papers numbered 1 to 9 read on this motion by defendants, Doron I. Ilan, M.D., Premier Orthopaedics of Westchester and Rockland, P.C., for an order, pursuant to CPLR Section 4404(b): (1) setting aside the verdict based upon juror misconduct; (2) setting aside the verdict based upon.the court's misreading of the medical malpractice charge; (3) setting aside the verdict as excessive and (4) reducing the verdict amount and (5) for such other and further relief as this court may deem just and proper; Cross motion by plaintiff for an order pursuant to CPLR Section 4404 and 5501, increasing the future pain and suffering amount to $850,000.00 or directing a new trial on damages. Papers Numbered Notice of Motion - Affidavits - Exhibits 1-4 Notice of Cross-Motion-Affidavits 5-7 Affirmation in Reply 8-9 Upon the foregoing papers, it is ORDERED that the motion in chief is denied in its entirety. Similarly the cross motion is denied. This medical malpractice action commenced on April 25, 1 of 3 FILED: QUEENS COUNTY CLERK 11/15/2019 03:05 PM INDEX NO. 707170/2015 NYSCEF se' DOC. NO. 106 RECEIVED NYSCEF: 11/15/2019 2019 and resulted in a verdict in favor of plaintiff on May 2, 2019 for past pain and suffering in the sum of $550,000.00 and future pain and suffering for ten years in the sum of $400,000.00 (see Exhibit A to motion in chief). The jury found that Dr. Ilan departed from accepted standard of medical practice "by not performing surgery to repair Mr. Franzese's ulnar collateral ligament on March 18, 2013 or after?" The jury further found that this deviation was a substantial factor in causing Mr. Franzese's injuries. This was the only deviation that the jury found. Now, defendants attempt to set aside the jury verdict alleging juror misconduct. In support of their motion defendants allege that JoAnn Mesisca, Juror Number 1 failed to disclose an experience she had when her son had not received proper medical care until he went to a second doctor (see Mendys Affirmation in Support at paragraph 26). This baseless accusation is belied by Ms. Mesisca's affidavit in opposition which states in relevant part: I spoke outside of the jury room to plaintiff's and defendants' counsel and discussed with them both an experience my stepdaughter's husband had with a physician related to a kidney stones (sic)that required that he see a second physician for appropriate treatment. I do not have a son and have never been involved in my stepdaughter's husband's medical care. The record is devoid of any juror misconduct. A verdict shall not be set aside as the result of purported juror misconduct absent proof of substantial prejudice (see Snediker v County of Orange, 58 NY2d 647 (1982]). As such, the branch of defendants' motion seeking an order setting aside the verdict due to alleged juror misconduct is denied. The branch of defendants' motion to set aside the verdict due to the misreading of the charge on medical malpractice is similarly denied and completely devoid of merit. 2 2 of 3 FILED: QUEENS COUNTY CLERK 11/15/2019 03:05 PM INDEX NO. 707170/2015 NYSCEF • e- DOC. NO. 106 RECEIVED NYSCEF: 11/15/2019 The remaining branch of defendants' motion to set aside the verdict as excessive or reduce same is denied. Plaintiff's cross motion seeking an order increasing the award for future pain and suffering from $400,000.00 to $850,900.00 is denied. It is well settled that a jury's award regarding awards for past and future pain and suffering shall not be set aside unless the award deviates materially from what would be reasonable compensation (see McEachin v City of New York, 137 AD3d 753 citations omitted [2 Dept 2016]. The court finds that the amount awarded by the jury for future pain and suffering was reasonable and should not be disturbed. The foregoing constitutes the decision and order of this court. A copy of this order is being emailed to both sides this date. Dated: November 12, 2019 JOSEPH OSITO, J.S. FILED NOV 1 5 2019 COUNTY CLERK QUEENS COUNTY 3 of 3