        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

278
CA 10-00367
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


DANIEL C. OAKES AND LISA M. OAKES,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

RAJNIKANT PATEL, M.D., SATISH K. MONGIA, M.D.,
AND KALEIDA HEALTH, AS SUCCESSOR IN INTEREST
TO MILLARD FILLMORE HOSPITALS, DOING BUSINESS
AS MILLARD FILLMORE SUBURBAN HOSPITAL,
DEFENDANTS-APPELLANTS.


DAMON MOREY LLP, BUFFALO (AMY ARCHER FLAHERTY OF COUNSEL), FOR
DEFENDANT-APPELLANT KALEIDA HEALTH, AS SUCCESSOR IN INTEREST TO
MILLARD FILLMORE HOSPITALS, DOING BUSINESS AS MILLARD FILLMORE
SUBURBAN HOSPITAL.

ROACH, BROWN, MCCARTHY & GRUBER, P.C., BUFFALO (GREGORY T. MILLER OF
COUNSEL), FOR DEFENDANT-APPELLANT SATISH K. MONGIA, M.D.

BROWN & TARANTINO, LLC, BUFFALO (ANN M. CAMPBELL OF COUNSEL), FOR
DEFENDANT-APPELLANT RAJNIKANT PATEL, M.D.

LAW OFFICE OF FRANCIS M. LETRO, BUFFALO (RONALD J. WRIGHT OF COUNSEL),
FOR PLAINTIFFS-RESPONDENTS.


     Appeals from a judgment of the Supreme Court, Erie County
(Timothy J. Drury, J.), entered December 23, 2009 in a medical
malpractice action. The judgment awarded plaintiffs money damages
upon a jury verdict.

     It is hereby ORDERED that the judgment so appealed from is
affirmed without costs.

     Memorandum: Plaintiffs commenced this medical malpractice action
seeking damages for the failure of defendants to diagnose and treat
Daniel C. Oakes (plaintiff) for a sentinel bleed from a cerebral
aneurysm. Following the first trial, the jury returned a verdict
finding, inter alia, that defendants, Rajnikant Patel, M.D., Satish K.
Mongia, M.D., and Kaleida Health, as successor in interest to Millard
Fillmore Hospitals, doing business as Millard Fillmore Suburban
Hospital (Kaleida), were negligent and also that Kaleida was
vicariously liable for the negligence of third-party defendant Dent
Neurologic Institute (Dent). The jury apportioned fault among
defendants and awarded plaintiffs damages in various amounts
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including, insofar as relevant to this appeal, $1 million to plaintiff
for past pain and suffering and $60,000 to plaintiff wife for past
loss of services, as well as future damages covering 18 years in the
amount of $1 million for plaintiff’s future pain and suffering, $1.8
million for plaintiff’s future supportive living expenses and $150,000
for plaintiff wife’s future loss of services.

     Plaintiffs moved to set aside the verdict on damages only based
on, inter alia, the ground that certain elements of the award were
inadequate. Supreme Court, inter alia, granted the post-trial motion
in part and set aside the verdict with respect to damages for past and
future pain and suffering, past and future loss of services and future
supportive living expenses, and the court ordered a new trial on those
elements of damages unless defendants stipulated to an award of $5
million for past pain and suffering and $1.5 million for past loss of
services, as well as an award covering 18 years in the amount of $5
million for future pain and suffering, $2 million for future loss of
services and $3.9 million for future supportive living expenses.

     Also following the jury verdict, Kaleida moved for, inter alia,
leave to amend its answer to the amended complaint to include an
affirmative defense of release and an affirmative defense pursuant to
General Obligations Law § 15-108. According to Kaleida, plaintiffs
each executed and filed a proof of claim in a liquidation proceeding
in March 2003 against Kaleida’s insurer, PHICO Insurance Company
(PHICO), that included a release of claims against any PHICO insured.
Kaleida filed its own proof of claim in that proceeding in December
2007 with respect to this action against it and, although the deadline
to file proofs of claim in the liquidation proceeding was April 1,
2003, Kaleida averred that it had been advised by PHICO that its proof
of claim was timely. Kaleida alleged that it did not receive copies
of plaintiffs’ proofs of claim until May 2008, after the conclusion of
the first trial, and that the proposed amendments to its answer would
not prejudice plaintiffs. The court denied the motion.

     Defendants subsequently refused to stipulate to the court’s
increased damages, and a new trial on the issue of those damages was
conducted. Following the second trial, the jury returned a verdict
awarding plaintiff $5.6 million for past pain and suffering and
awarding plaintiff wife $1.5 million for past loss of services and
society. The jury also awarded future damages covering 17 years in
the amount of $4,720,000 for plaintiff’s future custodial care and
supportive services, $4 million for plaintiff’s future pain and
suffering, and $150,000 for plaintiff wife’s future loss of household
services and $750,000 for her future loss of services and society.
Defendants thereafter each moved, inter alia, to set aside the verdict
on the ground that the award for past and future pain and suffering,
past and future loss of services and society and future custodial home
care was excessive. Kaleida and Dr. Mongia also contended that they
had been prejudiced when the court erred in admitting certain evidence
and precluding other evidence, and when plaintiffs’ counsel and the
court engaged in inappropriate conduct. The court denied those parts
of defendants’ respective motions to set aside the verdict, and this
appeal ensued.
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     We conclude that the court properly denied that part of Kaleida’s
motion for leave to amend its answer to the amended complaint to
include an affirmative defense of release and an affirmative defense
pursuant to General Obligations Law § 15-108. The proofs of claim
executed and filed by plaintiffs in the liquidation proceeding with
respect to PHICO contained releases with respect to “any and all
claims [that] have been or could be made against [a] PHICO insured
based on or arising out of the facts supporting the . . . [p]roof of
[c]laim up to the amount of the applicable policy limits and subject
to coverage being accepted by the Liquidator . . . .” Further, the
notice received by plaintiffs in connection with their proofs of claim
states that, “[i]f coverage is avoided by the Liquidator, [the]
release[s] become[] null and void.” Because Kaleida’s liability for
the negligence of Dent is included in the claims specified to PHICO
and because PHICO’s liquidators avoided, or announced that they would
avoid, coverage of that portion of the claim, plaintiffs’ releases
were rendered null and void.

     We further conclude that defendants were not denied a fair trial
based on the alleged inappropriate conduct of plaintiffs’ counsel or
the court. Any improper remarks by plaintiffs’ counsel did not deny
defendants a fair trial because “ ‘they did not constitute a pattern
of behavior designed to divert the attention of the jurors from the
issues at hand’ ” (Kmiotek v Chaba, 60 AD3d 1295, 1296). Furthermore,
although certain actions and statements of the court may have been
somewhat intemperate or ill-advised, we conclude that, “overall[,] the
conduct complained of was not so egregious as to have deprived the
[defendants] of a fair trial” (Malaty v North Ark. Wholesale Co., 305
AD2d 556; see Sheinkerman v 3111 Ocean Parkway Assoc., 259 AD2d 480,
lv dismissed in part and denied in part 93 NY2d 956).

     We further conclude that the jury’s verdict on liability in the
first trial is not against the weight of the evidence (see generally
Cohen v Hallmark Cards, Inc., 45 NY2d 493, 499), and that the various
elements of damages awarded in the second trial do not deviate
materially from what would be reasonable compensation (see CPLR 5501
[c]).

     Finally, we note our agreement with plaintiffs that the court
properly granted those parts of their post-trial motion in the first
trial to set aside certain elements of the award of damages as
inadequate. With respect to the issue of the additur as raised by the
dissent (Peradotto, J.), however, we conclude that, because defendants
did not challenge the court’s additur before, during or after the
second trial, and did not raise that issue on appeal, no such issue is
properly before us. Indeed, the only contentions raised by defendants
on appeal in the “argument” sections of their briefs regarding damages
are that the court erred in granting in part plaintiffs’ motion to set
aside the jury verdict in the first trial on the ground that certain
portions of the damages award were inadequate, without addressing the
amount of the court’s additur with respect thereto, and that the court
erred in denying those parts of their motions seeking to set aside the
second verdict on the ground that certain portions of the damages
award were excessive. We cannot conclude that, by challenging the
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                                                            CA 10-00367

court’s order setting aside the first verdict in part, defendants
thereby implicitly challenged the amount of the court’s additur (see
generally Gerbino v Tinseltown USA, 13 AD3d 1068, 1072). Nor can we
agree with our dissenting colleague that references to the amounts of
the court’s additur in the factual recitation of defendants’ briefs on
appeal constitute challenges to the court’s additur. In any event,
even assuming, arguendo, that such challenges are raised in the
briefs, they are raised for the first time on appeal and thus are not
properly before us (see Ciesinski v Town of Aurora, 202 AD2d 984,
985). We have considered defendants’ remaining contentions with
respect to both trials and conclude that they are without merit.

     LINDLEY, SCONIERS and MARTOCHE, JJ., concur; SMITH, J.P., dissents in
part and votes to modify in accordance with the following Memorandum:
I respectfully dissent in part, because I cannot agree with the
majority that specified elements of the award of damages following the
second trial are proper. Initially, I agree with the majority that
the issue of the additur, which Justice Peradotto in her dissent
asserts must be addressed before we review the excessiveness of the
second verdict, is not before us. I also agree with the remainder of
the majority’s determination, including that, contrary to defendants’
contention, Supreme Court properly granted those parts of plaintiffs’
post-trial motion to set aside the verdict from the first trial with
respect to damages for past and future pain and suffering, past and
future loss of services and future supportive living expenses on the
ground that the award for those elements of damages “deviates
materially from what would be reasonable compensation” (CPLR 5501
[c]).

     I agree with defendants, however, that the award after the second
trial with respect to damages for past and future pain and suffering,
past and future loss of services and future custodial care and
supportive services also “deviates materially from what would be
reasonable compensation” (id.). Although plaintiff Daniel C. Oakes
sustained severe and life-changing injuries, in my view, an award of
$2 million for past pain and suffering, $3.5 million for future pain
and suffering, $200,000 for past loss of services, $300,000 for future
loss of services, and $3 million for future custodial care and
supportive services, with all future awards covering 17 years, is the
maximum amount that the jury could have awarded as a matter of law
based on the evidence at the second trial (see generally Angamarca v
New York City Partnership Hous. Dev. Fund, Inc., ___ AD3d ___ [June
21, 2011]; Coque v Wildflower Estates Devs., Inc., 58 AD3d 44, 56;
Paek v City of New York, 28 AD3d 207, 208, lv denied 8 NY3d 805;
Sawtelle v Southside Hosp., 305 AD2d 659, 660). Therefore, I would
modify the judgment by vacating the award with respect to damages for
past and future pain and suffering, past and future loss of services
and future custodial care and supportive services and grant a new
trial on those issues unless plaintiffs stipulate to a reduction of
the verdict with respect to those elements of damages as indicated.

     PERADOTTO, J., dissents and votes to modify in accordance with the
following Memorandum: I respectfully dissent because, in my view, the
majority’s decision improperly fails to address the issue of whether
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the court’s additur after setting aside the first verdict was
appropriate. In my view, any issues concerning the excessiveness of
the second verdict should not be addressed unless and until all issues
relative to the first verdict are resolved.

     As the majority states, plaintiffs commenced this medical
malpractice action seeking damages for the failure of defendants to
diagnose and treat Daniel C. Oakes (plaintiff) for a cerebral
aneurysm. Following the first trial, the jury found that defendants
Rajnikant Patel, M.D., Satish K. Mongia, M.D. and Kaleida Health, as
successor in interest to Millard Fillmore Hospitals, doing business as
Millard Fillmore Suburban Hospital (Kaleida), were negligent and
awarded damages in the amount of $5,123,500. As relevant to this
appeal, the jury awarded plaintiff $1 million for past pain and
suffering, $1 million for future pain and suffering, and $1.8 million
for future supportive living expenses, and awarded plaintiff wife
$60,000 for past loss of services and $150,000 for future loss of
services. The future damages were awarded to cover a period of 18
years. Plaintiffs moved to set aside the verdict on damages only
based on, inter alia, the ground that certain parts of the award were
inadequate. The court determined that the award for past and future
pain and suffering, past and future loss of services and future
supportive living expenses deviated materially from what would be
reasonable compensation. The court therefore set aside the jury
verdict with respect to those categories of damages and ordered a new
trial unless defendants stipulated to increase the award to $5 million
for past pain and suffering, $5 million for future pain and suffering,
$1.5 million for past loss of services, $2 million for future loss of
services, and $3.9 million for future supportive living costs, with
all future damages awarded to cover a period of 18 years. With that
additur, the verdict would have been increased from $5,123,500 to
$18,513,500. Defendants rejected the additur and proceeded to a
second trial.

     On appeal, defendants contend that, inter alia, the court erred
in setting aside certain parts of the verdict from the first trial.
The order setting aside the first verdict and granting a new trial
unless defendants stipulated to an additur of $13.4 million is, of
course, brought up for review on this appeal from the judgment entered
after the second trial (see CPLR 5501 [a] [1]). The majority,
however, does not address all of defendants’ contentions with respect
to the verdict after the first trial. Instead, the majority proceeds
directly to the claims concerning the verdict after the second trial,
concluding that the damages awarded in the second trial are not
excessive. That is error. Rather, we must address the propriety of
the court’s order setting aside parts of the verdict following the
first trial and the appropriateness of the court’s additur before
addressing any issues raised with respect to the second trial (see
generally Sherry v North Colonie Cent. School Dist., 39 AD3d 986;
Zeigler v Neely, 220 AD2d 345; Libman v McKnight, 204 AD2d 856, lv
denied 84 NY2d 812).

     In my view, the court properly set aside the award for past and
future pain and suffering, past and future loss of services and future
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                                                         CA 10-00367

supportive living expenses inasmuch as the award with respect to those
categories of damages deviated materially from what would be
reasonable compensation (see CPLR 4404 [a]). I conclude, however,
that the court’s additur with respect to the noneconomic damages was
excessive (see generally Perlin v King, 36 AD3d 495; Rivera v Lincoln
Ctr. for Performing Arts, Inc., 16 AD3d 274; Carlos v W.H.P. 19, 301
AD2d 423), inasmuch as the amounts set by the court did not represent
“the minimum amount[s] that the jury could have found as a matter of
law based on the evidence at trial” (Camacho v Rochester City School
Dist., 20 AD3d 916; see Kmiotek v Chaba, 60 AD3d 1295, 1297;
Orlikowski v Cornerstone Community Fed. Credit Union, 55 AD3d 1245,
1247, lv dismissed 11 NY3d 915; see generally Siegel, NY Prac § 407,
at 689 [4th ed]). That is the applicable standard because “the amount
of damages to be awarded is primarily a question of fact [and] . . .
considerable deference should be accorded to the interpretation of the
evidence by the jury” (Marshall v Lomedico, 292 AD2d 669, 670
[internal quotation marks omitted]). Further, the successful
litigants are “entitled to the benefits of a favorable jury verdict”
(Keyser v KB Toys, Inc., 82 AD3d 713, 714; see McDonald v 450 W. Side
Partners, LLC, 70 AD3d 490, 491-492). In the context of plaintiffs’
motion to set aside the damages award as inadequate, it is the
defendants who are entitled to that benefit. In my view, $5 million
each for past and future pain and suffering and $3.5 million total for
past and future loss of services are simply not “the minimum amounts
the jury could have awarded as a matter of law based on the evidence
at trial” (Kmiotek, 60 AD3d at 1297; see generally Doviak v Lowe’s
Home Ctrs., Inc., 63 AD3d 1348). Defendants therefore were deprived
of the opportunity to stipulate to an appropriate additur with respect
to the award for past and future pain and suffering and past and
future loss of services, and that error is not cured by a second trial
on those categories of damages. Indeed, this is not a case in which
defendants made the strategic decision not to accept an appropriate
additur and to proceed at their peril. Thus, defendants should be
afforded the opportunity to stipulate to a proper additur in the
context of this appeal (see generally Perlin, 36 AD3d at 495; Rivera,
16 AD3d 274; Carlos, 301 AD2d 423). I would therefore modify the
judgment accordingly.

     The majority concludes that the additur issue is not properly
before us because defendants “did not challenge the court’s additur
before, during or after the second trial, and did not raise that issue
on appeal.” I disagree. In opposition to plaintiffs’ motion to set
aside the verdict on damages only after the first trial, defendants
contended that the verdict should stand because the award did not
deviate materially from what would be reasonable compensation. That
contention necessarily encompasses the argument that an additur in any
amount would be inappropriate. When the court granted plaintiffs’
motion in part, set aside the verdict with respect to certain elements
of damages and ordered a new trial on those elements unless defendants
stipulated to an additur of more than $13 million, defendants rejected
the proposed additur and proceeded to a second trial. I cannot agree
with the majority that, in addition to opposing plaintiffs’ motion and
rejecting the proposed additur, defendants were somehow required to
further “challenge” the amount of the additur in order to preserve the
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                                                         CA 10-00367

issue for our review. Throughout their briefs on appeal, defendants
assert not only that the court erred in setting aside the verdict
after the first trial, but they also contend that the court’s additur
was excessive. Kaleida, for example, states in its brief that it
“declined to stipulate to the inordinate additur,” noting that the
court “ordered a five-fold increase in [plaintiff]’s award for pain
and suffering, more than doubled [plaintiff]’s award for supportive
living expenses, and increased [plaintiff wife]’s award for loss of
consortium by a factor of more than 15.” Dr. Mongia similarly notes
in his brief that “[t]he trial court’s additur was more than four
times the amount awarded by the jury as to the particular [elements]
of damage[s] it felt to be inadequate.” I thus conclude that the
issue whether the additur was excessive is properly preserved for our
review.

     I take no position with respect to the majority’s determination
that the various elements of damages awarded in the second trial do
not deviate materially from what would be reasonable compensation
because, in my view, that issue should not be reached until all issues
with respect to the first trial have been resolved. I also take no
position with respect to defendants’ contention that the court erred
in precluding the admission of evidence relative to medical causation
in the second trial, a contention that the majority does not address.




Entered:   August 19, 2011                      Patricia L. Morgan
                                                Clerk of the Court
