11-2868-cv
Falzon v. JPMorgan Chase & Co.



                                 UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

         At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 8th day of November, two thousand twelve.

PRESENT:

                  JOSÉ A. CABRANES,
                  ROBERT D. SACK,
                  SUSAN L. CARNEY,

                                   Circuit Judges.

_____________________________________

JANET FALZON,

                                   Plaintiff-Appellee,

                  v.                                                       No. 11-2868-cv

JPMORGAN CHASE & CO. d/b/a CHASE BANK,

                     Defendant-Appellant.
_____________________________________

FOR DEFENDANT APPELLANT:                                     KEVIN G. HORBATIUK, Russo, Keane &
                                                             Toner, LLP, New York, NY.

FOR PLAINTIFF APPELLEE:                                      ANITA NISSAN YEHUDA, Anita Nissan
                                                             Yehuda, P.C., Roslyn Heights, NY; (Kenneth
                                                             Bornstein, Anthony James Emanuel, on the

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                                                        brief), Bornstein & Emanuel, P.C., Garden
                                                        City, NY.

       Appeal from a judgment of the United States District Court for the Eastern District of New
York (Leonard D. Wexler, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

         In the midst of bad weather on December 20, 2008, plaintiff-appellee Janet Falzon slipped
and fell at the Chase Bank located on Hempstead Turnpike in Levittown, New York. When she hit
the ground, Falzon injured her left elbow—an injury that continues to cause pain and that has
prevented Falzon from enjoying her favorite pastime of cast fishing, among other activities. A
federal jury awarded Falzon with $80,000 for past damages and $160,000 for future damages. On
appeal, defendant-appellant Chase Bank argues that the damages award should be set aside because
it was excessive and materially deviated from other awards in comparable New York cases. We
assume the parties’ familiarity with the facts and procedural history of this case.

                                           DISCUSSION

          “In an action brought to recover damages for personal injury under New York law, a
monetary judgment is excessive ‘if it deviates materially from what would be reasonable
compensation.’” Rangolan v. County of Nassau, 370 F.3d 239, 244 (2d Cir. 2004) (quoting N.Y.
C.P.L.R. 5501(c) (McKinney 1995)). “A district court applying this standard ‘reviews the evidence
presented at trial in support of the challenged damage award and compares the award to other New
York cases in which evidence of similar injuries was presented.’” Id. (quoting Presley v. U.S. Postal
Service, 317 F.3d 167, 173 (2d Cir. 2003)).

         We review a district court’s application of the “deviates materially” standard for an abuse of
discretion. Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 438 (1996). “A district court has
abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous
assessment of the evidence, or rendered a decision that cannot be located within the range of
permissible decisions.” In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (internal citations, quotation
marks, and brackets omitted). Because we must defer to the jury’s findings of fact, we construe the
trial record in the light most favorable to Falzon. See Lore v. City of Syracuse, 670 F.3d 127, 150 (2d
Cir. 2012).

       We conclude that the District Court did not abuse its discretion. The record is replete with
evidence showing that Falzon’s elbow injury caused sustained pain and inhibited her ability to
perform various tasks. For instance, Falzon testified about the extent of her injury, explaining that

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she experienced continuous pain and could not straighten her arm. Falzon also stated that because
of her injury she could not lift items with both hands without experiencing additional pain, nor was
she able to go cast fishing, which had been the “joy of her life.” Although the defense tried to
impeach Falzon’s credibility, we do not second-guess the jury’s apparent determination that Falzon’s
testimony was credible.

         Falzon also presented testimony from Dr. Eric Keefer, who explained that Falzon came to
him nearly two years after the injury and “complained of elbow pain” and “loss of motion.” After
reviewing Falzon’s medical records, including an MRI scan, Dr. Keefer testified that “there’s still
consistent irritation [within Falzon’s] elbow” based on damage to the cartilage within the joint, thus
creating “rough edges” that “catch . . . just like a hangnail may catch on you[.]” This pain, Dr.
Keefer explained, had led Falzon to experience “sharp pain” when she attempted to perform certain
activities that required a full extension of her elbow.

         The cases cited by the appellant do not show that the District Court abused its discretion in
finding that Falzon’s damages award was roughly comparable to other damages awards in analogous
New York cases. In Giladov v. Kurzweil, 220 A.D.2d 481 (2d Dep’t 1995), for instance, the court
sustained a damages award of $60,000 for past pain and suffering caused by a broken elbow. (The
plaintiff in Giladov did not recover anything for future pain and suffering because he had no
continuing symptoms.) When adjusted for inflation, see DiSorbo v. Hoy, 343 F.3d 172, 185 (2d Cir.
2003), that award would be nearly identical to Falzon’s award for past pain and suffering,1 and
obvious factual differences—namely, Falzon’s continued pain and suffering caused by permanent
damage to cartilage within the joint—justify the award of future damages in this case. Similarly, in
Coker v. Bakkal Foods, Inc., 52 A.D.3d 765 (2d Dep’t 2008), the plaintiff sustained a shoulder injury
that caused pain and a limited range of motion. The court sustained the jury’s award of $125,000 for
past pain and suffering and $75,000 for future pain and suffering—an award that again is in the
general range of Falzon’s award. Id. at 765. And in Mojica v. City of New York, 199 A.D.2d 250 (2d
Dep’t 1993), the court reduced a damages award stemming from a broken humerus “from $750,000
to $350,000 ($250,000 for past pain and suffering and $100,000 for future pain and suffering).” Id.
at 250. The inflation-adjusted value of $100,000 in Mojica is roughly equal to Falzon’s award for
future damages.2




1 One estimate of the value of $60,000 in April 1994 (the date of judgment in Giladov) in terms of prices in June 2011
(the date of the judgment in the present case) is roughly $92,000. See United States Bureau of Labor Statistics,
Consumer Price Index, available at ftp://ftp.bls.gov/pub/special.requests/cpi/cpiai.txt (visited Nov. 6, 2012).
2 One estimate of the value of $100,000 in June 1991 (the date of judgment in Mojica) in terms of prices in June 2011 is

roughly $166,000. See United States Bureau of Labor Statistics, Consumer Price Index, available at
ftp://ftp.bls.gov/pub/special.requests/cpi/cpiai.txt (visited Nov. 6, 2012).

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       Given these roughly comparable New York damages awards and the fact-intensive nature of
any comparison between awards, the District Court did not abuse its discretion in determining that
Falzon’s damages award was permissible under New York law.

                                                  CONCLUSION

       We have considered all of Chase Bank’s arguments on appeal and find them to be without
merit. Accordingly, for the reasons stated above, we AFFIRM the judgment of the District Court.

        In addition, “we cannot help but register our concern with appellant[’s] frivolous conduct in
pursuing this appeal.” Smith v. Silverman, 645 F.3d 186, 190 (2d Cir. 2011). The standard to be
applied in this case was straightforward: Any comparable damages award—construing the facts in
Falzon’s favor—was sufficient under New York law to sustain the award. Here, the appellant’s brief
cited New York cases where nearly identical damages (if not higher) were awarded in comparable
circumstances. Accordingly, the appellant lacked even “the slightest chance of success” on appeal.
Gallop v. Cheny, 642 F.3d 364, 370 (2d Cir. 2011).

        Falzon has not moved for sanctions, but we may “impose sanctions nostra sponte” after giving
the appellant “adequate notice and opportunity to be heard.” Id. Accordingly, we direct the
appellant’s counsel to show cause why we should not award double costs to the appellee for
appellant’s pursuit of this frivolous appeal.3 The appellant’s counsel shall file a response with the
Clerk of Court within thirty calendar days from the date of this order. Upon such filing, the
appellee’s counsel may, at her discretion, file a response within five business days.


                                                                  FOR THE COURT:
                                                                  Catherine O’Hagan Wolfe, Clerk




3 Rule 38 of the Federal Rules of Civil Procedure provides: “If a court of appeals determines that an appeal is frivolous,

it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just
damages and single or double costs to the appellee.” Fed. R. App. P. 38; see also Gallop, 642 F.3d at 370 (discussing the
sources of authority upon which an appellate court may award sanctions).

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