In April of 2003 decedent Thomas was admitted to Downstate Hospital for single bypass heart surgery and a mitral valve repair. However, instead, defendant doctor Burack performed three open heart surgical procedures on the decedent. According to the plaintiff, because of negligent monitoring and treatment of the complications related to the procedures, in September Thomas died in Downstate Hospital without ever leaving the hospital. Plaintiff, as the administratrix of the decedent’s estate, filed a medical malpractice lawsuit against defendant Burack. After a trial, the jury found in favor of the plaintiff, awarding $6 million for the decedent’s conscious pain and suffering, $13 million for the loss of the decedent’s services and society prior to his death, and $780,000 in pecuniary damages on the wrongful death claim.

Defendant Burack appealed. In addition to arguing that he was not liable for the decedent’s death, he also appeals the amount of the monetary judgements. He asserts that the $6 million for pain and suffering and the $13 million for loss of services are not reasonable. He further asserts that the $780,000 award for wrongful death was not proven.

The record shows that as a result of the defendant’s negligence, the decedent did undergo a number of procedures and as a result, did experience a great deal of “pain and suffering.” For example, the hospital records show that the decedent’s pain level following the second surgery was a “10.” He was in so much pain that even when he was sedated he had to be restrained. Further, during the time he was in the hospital, because of the medical negligence he had to undergo blood transfusions, developed pneumonia multiple times, experienced a partially collapsed lung that required a bronchoscopy, had urinary tract infections, sepsis, hearing loss, ulcers, and intestinal bleeding. Because he had to use respiratory tubes, he was unable to speak and had to communicate with his wife by writing. In those written communications, he expressed that he was in pain and was afraid that he was going to die. The plaintiff submitted evidence of the close relationship she had with the decedent and how much time he spent with her as well as with the rest of their large family.

The court notes that the amount of damages is up to the jury. However, if the jury award is not reasonable, the court will modify it. After reviewing jury awards in cases that involved 5-8 months of hospitalization, multiple complications, and multiple procedures due to medical negligence, the court concluded that the $6 million award for pain and suffering was excessive. In the cases reviewed, the pain and suffering damages were in the range of $1.2-1.5 million. Similarly, as far as loss of services, after reviewing awards in other similar cases, the court also found the jury award to be excessive. The court concluded that it should have been no more than $200,000, instead of the $13 million awarded.

In addition, defendant Burack argued that the wrongful death jury award of $780,000 for pecuniary loss was not supported by the testimony in that there was no evidence of loss of earnings, loss of household services, or loss of inheritance. The court agreed with the plaintiff that she had presented evidence that there was a loss of household services in that the decedent did the majority of the cooking for the household and also cooked for large family gatherings. However, given the age of the decedent at the time of his death and his poor health before he entered the hospital, the court found that the amount of damages for pecuniary loss should be no more than $75,000.

Thus, the court agreed with the jury that there was evidence to support a finding of liability on the part of the defendant. However, it ordered a new trial as to damages unless the plaintiff agrees to a reduction of damages.

Pursuant to CPLR §503(a), venue is predicated upon the residence of one of the parties at the time the action is commenced, not where the cause of action arose. However, CPLR §510(1) provides that the “court, upon motion, may change the place of trial of an action where: the county designated for that purpose is not a proper county.” And, it is settled that upon a motion by defendants to change said venue, defendants bear the burden to establish that the plaintiff”s choice of forum is not appropriate, or that other factors and circumstances require that venue be changed. In addition, it is settled that “unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed”.

Here, defendants fail to demonstrate that plaintiffs move to Pennsylvania shortly after commencing the instant action evidences a lack of intent to retain New York County as a permanent residence sufficient to defeat New York County as a basis for venue.

First Department case law, which is controlling over this Court, makes clear that for the purpose of deciding whether the placement of venue is proper “the controlling date is the date of commencement of the action”. The First Department also makes clear that in the absence of evidence that a plaintiff’s residency was “contrived for the sole purpose of obtaining an advantageous venue,” it is proper to conclude that the plaintiff was a bona fide resident of the county wherein he or she resided at the time the action was commenced.

Further, the First Department points out that “a subsequent change of residence to another county does not invalidate the original designation based upon plaintiffs residence at the time of the commencement of the injury action”. In reversing the trial court, the First Department held, inter alia, that “a subsequent change of residence to another county does not invalidate the original designation based upon plaintiffs’ residence at the time of the commencement of the action”.

The case law defendants cite is distinguishable. In the 1978 case, the defendant appealed an order denying his motion to change the venue of the action from Kings County to Westchester County. The plaintiff had maintained a home in Westchester County for 20 years, his two children attended public school in Scarsdale, he was a registered voter in Scarsdale, and he filed income tax returns as a resident of Scarsdale, He also claimed “exclusive use” of a bedroom in his sister’s and brother-in-law’s home in Kings County. In reversing the trial court and determining that the Kings County venue did not constitute a residence, the Second Department held that the plaintiff’s “occasional use of the bedroom in his sister and brother-in-law’s home does not support his contention that he has a second residence in Brooklyn”. The Second Department went on to explain: Although a person may have more than one residence for venue purposes, to consider a place as such, he must stay there for some time and have the bona fide intent to retain the place as a residence for some length of time and with some degree of permanency. Residence requires more stability than a brief sojourn for business, social or recreational activities. The mere fact that plaintiff uses the Brooklyn home of his sister and brother-in-law as a stopover for convenience and to sleep there when in the area on business, does not establish a residence.

The other cases defendants cite also are unavailing. In the 1996, the plaintiff filed an action basing venue on her “residence” in Bronx County, a mere three months after moving to Bronx County from Westchester County. However, one week after the plaintiff moved to the Bronx, she registered her car in Westchester County, and “in her affidavit, the plaintiff acknowledged that she and her family were now residing in Putnam County”. After examining plaintiffs affidavit, the Second Department determined that “the move was not made with `the bona fide intent to retain the place in Bronx County as a residence for some length of time and with some degree of permanency’”. In the 1989 case decision, the First Department held that the trial court “did not abuse its discretion in granting the injury motion for a change of venue given its finding that plaintiffs’ occupancy of a relative’s home in the Bronx while their Westchester home was being renovated indicated a lack of intent to remain in the Bronx.” In the 2009, the evidence “revealed that on or about December 31, 2005, which was just over one year after the subject accident, the plaintiff moved to her son’s apartment in Brooklyn from her house in Staten Island after a `diabetic episode,’ that in March or April 2006, she entered into a contract to purchase a house in New Jersey, that on August 8, 2006, three days after commencing this action, she `took over’ her new house in New Jersey, and moved into it in November 2006.” The Second Department determined that the plaintiff was temporarily staying in a Brooklyn apartment without “the bona fide intent to retain the place as a residence for some length of time and with some degree of permanency” when she commenced her action. Therefore, the motion to change venue from Kings County to Richmond County, where the defendants resided, should have been granted, the Court held.

Here, unlike the plaintiffs in the cases above, plaintiff had not recently moved to New York County when she filed the instant action. Instead, she had lived at the premises for two years prior. Therefore, none of these cases is on point. As it is clear from the evidence in the record that plaintiff was a resident of New York County at the time she commenced the instant action, and that her residence in New York County was not contrived to obtain an advantageous venue, defendants’ motion is denied.

Based on the foregoing, the court held that the motion of defendants for an order, pursuant to CPLR §511, to change the venue of this action brought by plaintiff is denied; and it is further ordered that counsel for plaintiff and counsel for defendants appear for a Preliminary Conference before the Justice 60 Center Street, Part 35, Rm. 438 on Tuesday, March 30, 2010 at 2:15 p.m.; and it is further ordered that defendants serve a copy of this order with notice of entry upon all parties within 20 days of entry.

On March 5, 2008, at approximately 5:00 a.m., the plaintiff was riding a bus owned and operated by defendant Metropolitan Suburban Bus Co. According to the plaintiff, the bus driver stopped short, causing her to slip and fall on the wet floor of the bus. Plaintiff claims that as a result of the fall, she seriously injured her lower back, right knee, and right ankle. About 8 months later, the plaintiff filed a lawsuit against the defendant. The defendant filed a motion for summary judgment dismissal of the claim.

Because the defendant filed the motion for summary judgement, it has the burden of showing that there are not material issues of fact and that as a matter of law, it is entitled to win the case. In this case, the defendant must show that the plaintiff did not sustain a “serious injury.” If the defendant meets its burden, then the burden shifts to the plaintiff to raise an issue of fact as to the existence of a “serious injury.” The court will view evidence in a light most favorable to the non-moving party, which in this case is the plaintiff.

To support its contention that the plaintiff did not suffer a serious injury in the bus accident, the law requires that the defendant submit objective proof of the plaintiff’s injury such as sworn MRI and CT scan tests, along with the doctor’s observations during the physical examination of the plaintiff. The defendant submitted testimony from a doctor who performed an independent orthopedic medical examination of plaintiff. The defendant also submitted an MRI as well as the plaintiff’s medical records from her doctor, a letter from her chiropractor, and records from the emergency department that treated her.

The records show that all of the medical issues that the plaintiff claimed to have suffered had been resolved. According to one doctor, the plaintiff showed no evidence of an orthopedic disability. In addition, the defendants argue that the plaintiff’s own medical records disprove her claim of lumbar radiculopathy, and that the plaintiff’s own doctor conducted nerve conduction studies of plaintiff’s upper and lower extremities and found only normal results. In addition, there was no evidence of electrical instability when her muscles were examined.
Finally, the defendant argues that it is entitled to summary judgment because there is evidence that the plaintiff had accidents both before and after the accident on the bus at issue in this case. When presented with this information, the plaintiff acknowledged that she had an “old back injury.”

Based on the evidence, the defendant met its burden. Now the burden shifts to the plaintiff to present evidence to overcome the evidence submitted by the defendant.

In opposition to defendants’ motion, plaintiff argues that defendant’s independent medical expert failed to perform a complete set of range of motion testing in the areas of either left or right lumbar rotation and therefore his opinion that she has a normal range of motion is questionable. In support of her contention, the plaintiff submitted testimony of another doctor who conducted an independent neurological examination of plaintiff. This doctor stated that the plaintiff has significant losses of range of motion in her lumbar spine and that the losses are due to the fall on the bus. However, the record also indicated that the plaintiff failed to disclose to this doctor that she had suffered any prior accident or injury.

The Court concluded that the plaintiff did not meet her burden by presenting sufficient evidence to overcome the defendant’s evidence by demonstrating the existence of a triable issue of fact that she suffered a serious injury. In addition to not providing sufficient evidence that she suffered a serious injury, the court noted that even if she had, because she had other medical problems before and after the bus accident, it would be hard for her to demonstrate that the bus accident caused her limitations.