Preview
FILED: BRONX COUNTY CLERK 04/03/2023 09:32 AM INDEX NO. 306522/2014E
NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 04/03/2023
SAPREME COURT TRIAL TERT',I
20
')
Y
Lndry 3o
AGAINST
a File Na--
"\d I hueby Cutily tlut thk ouue u)6 nid belre
HOii. F,:.1:,^.:-r:,,tT
Hot ^-,, a lu!, on
doy ol /n 20 L2, ud a olrrilbt rqdqeit thsefit lor ttu
the urm o1 S
{ai*\ ODO
tbl DOD
a,t., 7 I o ooo
3 Doo
al^a q
HII:lr II'l.l
DKI.'
MTE: t<
G]!il
1 of 343
FILED: BRONX COUNTY CLERK 04/03/2023 09:32 AM INDEX NO. 306522/2014E
NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 04/03/2023
Supreme Court of the State ofNew York
Valerio v. Eaton Electric Index: 306522120148
Part 26 Bronx Court
EXHIBIT STMET
Index: 306522120148
Justice: Paul Alpert, JSC
Ronald Valerio
Plairtiff Atty: Scott Occhiosgrosso
PlairtiffAtty: Gabriela M. Pulla
Plailrtifr Defcndant Atty: Andrca Sacco Camacho
-versus-
Trial begon: 3D12023
I
E EfiBTTNO.
Eaton Electric e
DflCt t
DAIE:
H
Defendant, Trial concluded: 3/9/2023
II' Drtc for Phintiffs Exhibitr - Description Date in Evidence
) Evidence No.
I 3t2t23 Certified Union Records 3t2t23
2 3t2t23 Innge sigr 3t2D3 2
2a v2n3 Enlargement of Exhibit 2 312t23 2a
3 3t2t23 Image door with sign 312123 3
3a 3t2123 Enlargement of Exhibit 3 312123 3a
4 3t2D3 Two images on one page, door/steps 312123 4
4a 312121 Enlargemort of Exhibit 4 312D3 4a
5 312123 Illustration 3t2D3 5
6 3U23 Illustration 3t2t23 6
1 312D3 Island Muskoloskeletal Care rccords 3t2D3 7
E 3t2t23 Dr. Grewal 312123 E
9 3t2t23 Operative report 3t2t23 9
l0 313123 Emergency Medical Center records 3t3121 t0
ll 3t3t23 Carlisle St. Martin MD rccords 3t3t23
t2 3t3t23 South Shore Medicine, Dr, Cary Lovine 313123 l2
l3 3t6t23 1040 Tax Rctum 2013, R. Valcrio 1t6t21 ll
2 of 343
FILED: BRONX COUNTY CLERK 04/03/2023 09:32 AM INDEX NO. 306522/2014E
NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 04/03/2023
Supreme Court of the State of New York
Valerio v. Eaton Electric Index: 306522120148
IiT] Date Plaintil?s Exhibits page 2 Dote Exhibit
for II) No.
t4 316D3 Economic Summary Charts 3t6D3 t4
l4a 3t6D3 Enlargement of Exhibit I 4
l4b 3/6D3 Enlargement ofExhibit 14 page 2
l5 3t7 D3 North Shore Pain Management Medical Records (498 pages) 3t7n3 l5
l6 318123 Notice to Intro Business Records at Time ofTrial-LIPPAT 3t8n3 t6
't7 318D3 Notice to Intro Business Records-Sports Medicine & Rehab 3t8/23 t7
l8 3t8D3 Notice to Intro Business Records-Thompkin's Pharmacy & Health 318D3 l8
19 3t8t23 N orth Shore 4 l7 / I 4-7 12/ I 6 3t8t23 l9
z0 318123 Notice to Intro Business Records-Huntington Hospital 318t23 20
2l 3t8D3 Notarized letter from Milton Legister 3t8t23 2l
22 318/23 Notice to Intro Business Records-Behavioral Medicine Associates 318123 22
23 3t8D3 Notice for Intro ofcertified Bills into Evidence at Time ofTrial 318/23 23
3 of 343
FILED: BRONX COUNTY CLERK 04/03/2023 09:32 AM INDEX NO. 306522/2014E
NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 04/03/2023
Supreme Court of the State ofNew York
Valerio v. Eaton Electric Index: 306522120148
ml Drte for Defcrdant's ExhibiB - Description Drtr itr
II) Evidence
BI 317D3 Image
B2 3n/23 Image
B3 3n D3 Image
B4 3t7 D3 Image
C 3nD3 Panicipant and Spouse Rejection Form
D 3nD3 Certifi ed pharmacy records 317 D3 D
Dr. records 3n D3 E
317 D3 Judicial Subpoena for Dr. Borimir Darakchiev F
3/7 D3 Sign-in sheets (l lpages) G
3t7 D3 lncident/Accident Investigative Report H
317123 Neuro Progress Notes I
3n D3 Dr. Amitina Records 3t7 D3 J
K 3t' 23 Prescriptions 3n D3 K
L 3/7 D3 Report of MRJ 8/2010 3n D3 L
M 3nD3 Dr. Radiology Report 3n/23 M
NI 3nD3 Park Place Radiology films 317 D3 NI
N2 317D3 Park Place Radiology filrns 3n123 N2
o 3t8D1 Image 3t8t23 o
318123 Image 318D3 P
4 of 343
FILED: BRONX COUNTY CLERK 04/03/2023 09:32 AM INDEX NO. 306522/2014E
NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 04/03/2023
Supreme Court of the State of New York
Valerio v. Eaton Electric Index: 306522120148
II
II
Court's Exhibits - Description Dat€ Exhibit
No.
I
II
Marked Pleadings 2D8D3
Plahtif s motion in Liminc & Dcfendant's II
II
Opposition 3Dt23
III
II
Defendant's motion in Limine 3DD3
Plairtif IV
II
s Proposed Jury Chargcs 3t9D3
II
Defendant's Proposed Request to Charge 319D3
I VI
II
Jury Note # 3t9D3
VI
II
Jury Note #2 319123
VIII
II
Jury Note #3 319123
Vcrdict Shoot x
II
3t9D3
Verdict Extract x
II
319D3
XI
II
Exhibit Sheet 319123
II
II I
II
II II
II
II I
II
II I
II
II I
II
II
II
II
II
II
II
II
II 5 of 343
FILED: BRONX COUNTY CLERK 04/03/2023 09:32 AM INDEX NO. 306522/2014E
NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 04/03/2023
SUPREME COURT OF TIIE STATE OF NEW YORK Index No.: 3M52212014E
COI.]NTYOFBRONX
x PLAINTIFI''S PROPOSED
RONALDVALERIO, JI]RYCHARGES
Plaintitr,
-againsh
}IAZENAND SAWYE& D.P.C., EATON ELECTRIC,
INC. and FIVE STAR ELECTRIC CORPORATION,
Defendant.
x
Plaintitr, RONALD VALERIO, by his attomeys BLOCK O'TOOLE & MURPHY, respectfirlly
sets forth the following as Plaintiffs Request to Charge:
1. PJI & 1:20 Introduction
Members of the jury, we come now to that portion of the trial where you are instucted on the
law applicable to the case and then retire for your final deliberations. You have now heard all
the evidence introduced by both sides and, through arguments oftheir respective attomeys you
have leamed the conclusions, which each party believes should be drawn from the evidence
presented to you.
2. PJI ! 1:21 Review Princioles Stated
You will recall that at the beginning ofthe trial I stated for you certain principles so that you
could have them in mind as the hial progressed. Briefly, they were that you are bound to accept
the law of the case as I give it to yoll" whether or not you agree with it: further that you must not
infer Aom my rulings or anything I have said during the trial that I hold any views for or against
any party to this lawsuit, my views being completely irrelevant to your detemrination, in any
event; further, that you may not draw any inference from an unanswered question nor consider
testimony which has been sfricken in reaching your conclusion; further that in deciding the
degree of weight you choose to give to the testimony of any particular witnes.i there is no
magical formula which can be used. The tests used in your everyday affairs to detemine the
reliability or unreliability of statements made to you by others are the tests applied in your
deliberations. Among the iterns to be taken into consideration in determining the weight you will
assip to the testimony of a witness are the interest or lack of interest of the witness in the
outcome ofthe case, the bias or prejudice of the witness if there by any, the age, the appearance,
the manner of the witness as he/she gave testimony from the stand, the opportunity that the
witness had to observe the facts conceming which he/she testified the probability or
improbability of the witness' testimony when viewed in the light of all the other evidence in the
case.
oouRrs.
3. PJI t 1:22 Falsus in Uno s DGIB]II{o.
E \\
I e
DISJ
6
a DAIE
6 of 343
FILED: BRONX COUNTY CLERK 04/03/2023 09:32 AM INDEX NO. 306522/2014E
i
NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 04/03/2023
If you find that any witness has willfirlly testified falsely as to aoy material fac!
the law permits
you to disregard completely the entire testimony of that witress upon the principle that one who
testifies falsely about one material fact is quite likely to testifr falsely about everything. You are
not required, however, to consider such a witness as totally unworthy of belief. You may accept
so much of his or her testimony as you deem true and disregard what you feel is false. By the
processes which I have just described to you, you" as the sole judges of the facts, deterrnine
which of the witnesses you will believe, what portion of their testimony you accept and what
weight you will give to it
4. PJI t 1:23 Burden ofProof
The burden ofproofrests on the Plaintiff. That means tlat it must be established, by a fair
preponderance of the credible evidence, that the claims Plaintiff makes are true. The credible
evidence means the testimony or exhibits that you find to be worthy to be believed. A
preponderance means the greater part of such evidence. That does not mean the greater number
ofwitnesses or the greater length oftime taken by either side. The pbrase refers to the quality of
the evidence, that is, its convincing quality, the weight and the effect that it has on your minds.
The law requires that, in order for the Plaintiffto prevail, the evidence that supports his claims
must appeal to you as more nearly representing what took place than that opposed to his claims.
If it does not or if it weighs so evenly that you are unable to say that there is preponderance on
either side, then you must resolve the question in favor of the Defendants. It is only if the
evidence favoring the Plaintiffs claims outweighs the evidence opposed to it that you can find in
favor of Plaintiff.
5. PJI 0 1:24 Retuminp to Courtroom
If, in the course ofyour deliberations, your recollection of any part ofthe testimony should fail,
or you should find yourself in doubt conceming my instructions to you on the law, it is yorn
privilege, if you so desire, to retum to the courtroom for the purpose ofhaving such testimony or
instructions read to you.
6. PJI Q 1:25 Consider OnIv Testimonv and Erhibits
In making the factual determination on which your verdict will be based, you may consider only
the exhibits which have been admitted in evidence and the testinony of the witnesses as you
have heard it h this courtroom (or as there has been read to you testimony given on examination
before trial). Under our rules ofpractice an examination beforc trial is taken under oath and is
entifled to equal consideration by you notwithstanding the fact that it was taken prior to trial and
outside the courtroom. However, arguments, remarks, and summation of the opposing attomeys
are not widence nor is anything that I now say or may have said with regard to the facts,
evidence.
7. PJI E l:26 FiveSixths Verdict
Itrw t:2GA 7
7 of 343
FILED: BRONX COUNTY CLERK 04/03/2023 09:32 AM INDEX NO. 306522/2014E
NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 04/03/2023
While it is important that the views of all jurors be considered, a verdict of five of the six
members of the jury will be sufficient under the law. Whenever five of your members
are in agreement on a verdic! you may r€port your verdict to the court
8. PJI t 1:27 ExcludeSvmnathv
In reaching your verdict you are not to be affected by sympathy for any of the parties,
what the reaction of the parties or of the public to your verdict may be, whether it will
please or displease anyone, be popular or unpopular or, indeed, any consideration outside
the case as it has been presented to you in this the courtroom. You should consider only
the evidence-both the testimony and the exhibits-find the facts from what you consider to
be the believable evidence, and apply the law as I now give it to you to those facts. Your
verdict will be detemrined by the conclusion thus reached, no matter whom the verdict
helps or hurts.
9. PJIEl:37 JunFunction [lAV l:ry
As the jurors, your frmdamental duty is to determine, from all the evidence that you have
heard and the exhibits that have been submitted, what the facts are. You are the sole, the
exclusive judges of the facts. In that field you are supreme and neither I nor anyone else
may invade your province.
10. PJI 1:38 Courtrs X'unction
Itl o \ou6er Ac,l,an6s
On the other hand, and with equal emphasis, I charge you that you are requircd to accept
the law as it is given to you in this charge and in any instructions that I have given to you
during the course of the trial. Whether you agree with the law as given to you by me or
not, you are bound by it. You are not to ask anyone else about the law. You should not
consider or accept any advice about the law from anyone else but me. The process by
which you arrive at a verdict is first, to decide from all ofthe evidence and the exhibits,
what the facts are, and second to apply the law as I give it to yor! to the facts as you have
decided thern to be. The conclusion thus reached will be your verdict. Your verdict will
be in the form of answers to written questions which I will submit to you.
11. Pot
.(i,a.,'t4'.. t :q
u.^rtt -{
AlVtal ,/b [.'n- -?
I (*1,
I have endeavored to preside impartially and ilot to express an oplrxon one way or the
other as to what you should find the facts to be. In the course of the trial it has been
necessary for me to rule on the admission of evidence and on motions made with respect
to the applicable law. You must not infer from any such ruling I have made or Aom
anything that I have said during the course of the trial that I hold any views for or against
either of the parties to this lawsuit. Any views of mine would, in any event, be totally
irrelevant since it is your recollection of the evidence and your determination of the
issues of fact, which contol.
12,PJI$ 1:40 ConsiderOnlvComoetentEvidencc LI4z t:Z
J
8 of 343
FILED: BRONX COUNTY CLERK 04/03/2023 09:32 AM INDEX NO. 306522/2014E
NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 04/03/2023
At times during the trial I have sustained objections to questions asked without permitting
the witness to answer or where an answer was made, instucted that it be stricken fiom
the record and that you disregard it and dismiss it ftom your minds. You may not draw
any inference from an unanswered question nor may you consider testimony, which bas
been stricken in reaching your decision. The law requires that your decision be made
solely upon the competent evidence before you. Such iterns as I have excluded from your
consideration were excluded because they were not legally admissible.
13.PJI$1:41 weiehhsTestimonv l' / Vod i'^ ?rel;r"^n' i'^*<'Y*"*e-
Lxl;+,5a,.,.
The law does no! however, require you to accept all of the evidence I have admitted,
even though it be competent. In determining what evidence you will accep! you must
make your ovm evaluation of the testimony given by each ofthe witnesses, and
detennine the degree of weight you choose to give to his or her testimony. The testimony
ofa witness may fail to confonn to the facts as they occurred because he/she is
intentionally telling a falsehood, because he./she did not accurately see or hear that about
which he/she testifies, because hislher recollection of the event is faulty, or because
he/she has not expressed himself&erself clearly in giving his/her testimony. There is no
magical formula by which one may evaluate testimony. You bring with you to this
courhoom all ofthe experience and background ofyour lives. In your everyday affairs
you determine for yourselves the reliability or unreliability of stafements made to you by
others. The same tests that you use in your everyday dealings are the tests, which you
apply in your deliberations. The interest or lack of interest of any witness in the outcome
ofthis case, the bias or prejudice ofa witness, ifthere be any, the age, the appearance, the
manner in which the witness gave his/her testimony on the stand, the opportunity that the
u/itness had to observe the facts conceming which he/she testified, the probability or
improbability of the witness' testimony when viewed in the tight of aU of the other
evidence in the case, are all items to be taken into your consideration in deterrnining the
weighq if any, you will assign to that witness' testimony. lf such considerations make it
appear that there is a discrepancy in the evidence, you will have to consider whether the
apparent discrepancy may not be reconciled by fitting the two stories together. If,
however, that is not possible, you will then have to determine which of the conflicting
versions you will accept.
14. PJI t 1:90 General Instruction-Exnert Witness
You will recall that wihesses Dr. Kanwarpaul S. Grewal, M.D. Spinal Surgeoq Dr., Dr.
Edwin Richter III, specialist in Physical Medicine and Rehabilitatioq Daniel Wolstein,
Ph.D., Vocational Rehabilitation expert, and Debra Dwyer, Ph.D., Economist, Dr.
Jonathan Lucb, M.D, a Radiologist, and Dr. Douglas€ohen, M.D., a neurosurgeorl
testified conceming their qualifications as experts in their respective field and gave their
opinions conceming the issues in the case. When a case involves a matter of science or
art or requires special knowledge or skill not ordinarily possessed by the average person,
an expert is permitted to state his or her opinion for the inforrnation of the court and jury.
The opinions stated by each expert who testified before you were based on particular
4
9 of 343
FILED: BRONX COUNTY CLERK 04/03/2023 09:32 AM INDEX NO. 306522/2014E
NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 04/03/2023
facts, as the expert obtained knowledge of them and testified to them before you, or as tlte
attomeys who quesfioned the expert asked the expert to assume. You may reject the
expert's opinion ifyou find the facts to be different ftom those, which forrned the basis
for the opinion. You may also reject the opinion if, after careful consideration of all the
evidence in the case, expert and other, you disagree with the opinion In ottrer words, you
are not required to acc€pt an expefi's opinion to the exclusion ofthe facts and
circumstances disclosed by other testimony. Such an opinion is subject to the same rules
conceming reliability as the testimony of any other witnesses. It is given to assist you in
reaching a proper conclusion; it is entitled to such weight as you find the expert's
qualifications in the field warrant and must be considered by yoq but is not controlling
upon your judgment.
B/ 15. PJI t 1:91 ceneral Imtructior - Interested Wittrers - Generrllv ,lta- l: Z-, C
The Plaintiff, RONALD VALERIO, testifred before you. As a party to the action, he is
an interested witness.
An interested witness is not necessarily less believable than a disinterested witness. The
fact that they are interested in the outcome ofthe case does not mean that they have not
told the truth. It is for you to decide ftom the demeanor of the witness on the stand and
such other tests as your experience dictates whether or not the testimony has been
influenced, intentionally or unintentionally, by their interests. You may, if you consider
it proper under all of the circumstances, not believe the testimony of such a witness, even
though it is not otherwise challenged or contradicted. However, you are not required to
reject the testimony of zuch a witness, and may accept all or such part of their testimony
as you find reliable and reject such part as you find unworthy of acceptance.
{,V ru.
The fact that the witness MILTON LEGESTER was employed by Defendant EATON
ELECTRIC INC, and the testimony you have heard of his relationship with his employer
may be coosidered by you in deciding whether the testimony of MILTON LEGESTER is
in any way influenced by the employment relationship with Defendant EATON
ELECTRIC, INC.
/ 1?. PJI I 1:97 cenerrl Inrtructions-special verdicts p"A I: 26
This case will be decided on the basis of the answers that you give to certain questions
that will be submitted to you. Each ofthe questions asked calls for finsert "Ye
answer.), (some numerical figure), (some percentage), etc.l While it is important that the
views of all jurors be considered, five of the six of you must agree on the answer to any
questiorq but the same five person need not agree on all of the answers. When five of
you have agreed on any answer, the foreperson ofthe jury will write the answer in the
space provided for each answer and each juror will sign in the appropriate place to
indicate (his, her) agreement or disagreement. (Where appropriate add: As you will note
from the wording of the questions, you need not consider question 2, etc., at all ifyour
5
10 of 343
FILED: BRONX COUNTY CLERK 04/03/2023 09:32 AM INDEX NO. 306522/2014E
NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 04/03/2023
answer to question I is'No".)
When you have answered all the questions that require answem, report to the court. Do
not assume from the questions or from the wording of the questions or from any
instuctions on them what the answer should be.
18. -N
Negligence is lack ofordinary care. It is a failure to use that degree ofcare that a
reasonably prudent person would have used under the same circumstances. Negligence
may arise from doing an act that a reasonably prudent person would not have done tmder
the same circumstanc€s, or, on the other hand, from failing to do an act that a reasonably
prudent person would have done under tle same circumstances.
Wts.
Negligence requires both a reasonably foreseeable danger of injury to another and
conduct that is unreasonable in proportion to that danger. A person is only responsible for
the results ofhis or her conduct ifthe risk of injury is reasonably foreseeable. The exact
occrrrence or exact rqiury does not have to be foreseeable; but injury as a result of
negligent conduct must be not merely possible, but probable.
There is negligence ifa reasonably prudent person could foresee injury as a result ofhis
or her conducl and acted unreasonably in the light ofwhat could be foreseen. On the
other hand, there is no negligence if a reasonably prudent person could not have foreseen
any injury as a result of his or her conduc! or acted reasonably in the light ofwbat could
have been foreseen.
Employment
An employer is responsible for the act of its ernployee if the act is in furtherance ofthe
employer's business and is within the scope of the employee's authority. An act is within
the scope of an employee's authority if it is performed while the employee is engaged
generally in the performance of his or her assigned duties or ifthe act is reasonably
necessary or incidental to the employment. The employer need not have authorized the
specific act in question.
Among the factorc you may cofftider in deciding whether MILTON LEGESTER was
acting within the furtherance of EATON ELECTRIC, INC's business and within the
scope ofhis authority, you may include the connection between the time, place and
occasion for the act; the history of the relationstrip between EATON ELECTRIC, INC's
and MILTON LEGESTER as spelled out in actual practice; whether the act is one
commonly done by such an ernployee; the extent ofdeparture from normal methods of
performance and whether the specific act was one tlat EATON ELECTRIC, INC's could
reasonably have anticipated.
6
11 of 343
FILED: BRONX COUNTY CLERK 04/03/2023 09:32 AM INDEX NO. 306522/2014E
NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 04/03/2023
If you find MILTON LEGESTER negligently caused injury to the plaintiffwhile acting
within the scope of his authority and in furtherance of MILTON LEGESTER's business,
then MILTON LEGESTER is legally responsible for MILTON LEGESTER's conduct.
\/. PJI E 2,272 D"n"ecr-ceo"ot
If you find that the Plaintiffis entitled to recover from the Defendants, you must render a
verdict in a sum of money that will justly and fairly compensate the Plaintiff for all losses
resulting from the injuries Plaintitr sustained
22. PJI I 2:280 Damases-Penonal Iniurr-Iniurv and Pain end Sufferins
You may include in your verdict an award for the injuries you find that Plaintiff sufrered
and for conscious pain and suffering which you find to have been caused by the
negligence of Defendants. The Plaintiff is entitled to recover a sum of money, which will
justly and fairly compensate his for injuries and for conscious pain and suffering to date.
23. PJI E 2:280.1 Damages-Personal Iniun-IniulT rnd Pain rnd Sufferitrs
In determining the amount, if any, to be awarded Plaintifffor paia and zuffering, you may
take into consideration the effect that Plaintiffs injuries may have on Plaintiffs ability to
enjoy life. Loss of enjoyment of life involves the loss of the ability to perform daily
tasks, to participate in the activities, which were a part of the person's life before the
injury, and to experience the pleasures of life. However, a person suffers the loss of
enjoyment of life only if the person is aware, at some level, ofthe loss that she has
suffered.
Ifyou find that Plaintiff, as a result ofhis injuries, suffered some loss ofthe ability to
enjoy life and that Plaintiffwas aware of that loss, you may take that loss into
consideration in determining the amount to be awarded to Plaintifffor pain and suffering
to date.
24. PJI t 2:281 Damae€r-Personal Iniuw-Future-Pemrnence-Life Exoectancv Tables
With respect to any of the Ptaintiffs i4iuries or disabilities, the Plaintiff is entitled to
recover for future paiq suffering and disability and loss of his ability to enjoy life. ln this
regard you should take into consideration the period of time that the i4iuries and
disabilities are expected to continue. Ifyou find that the injuries and disabilities arc
perrnanent, you should take into consideration the period of time tbat the Plaintiffcan be
expected to live. In this cormection it is pointed out to you that PlaintiffRONALD
VALERIO is now fifty-eight (58) years of age and can be expected to live for nineteen
(19) more years, that is, until age seventy-seven (77), according to the most recent life
expectancy tables published by the United States Govemment. Such tables are, of
course, nothing more than statistical averages' They neither assure the span of life that I
have given you nor assure that the span of plaintiffs life will not be greater. The life
7
12 of 343
FILED: BRONX COUNTY CLERK 04/03/2023 09:32 AM INDEX NO. 306522/2014E
NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 04/03/2023
expectancy figure that I have given you is not binding upon yoq but may be considered
by you together with your own experience and the evidence you have heard conceming
the condition of plaintiffs healfl her habits, employment, and activities in determining
whar the Plaintiffs present life expectancy is.
25.
Ifyou find that before this accident the plaintiffhad degeneration in his cervical spine
and frrther find that because ofthe accidetrt this condition was aggravated or activated so
as to cause increased suffering and disability, then the plaintiffis entitled to recover for
any increased disability or pain resulting from such aggravation. He is not, however,
entitled to recover for any physical ailment or disability which existed prior to the
accident or for any injuries from which he may now be suffering which were not caused
or contributed to by the accident. The plaintiff can recover only for damage caused by
aggravation ofthe pre-existing conditiorl not the condition itself. The plaintiff should be
compensatd only to the extent that you find his condition was made worse by the
defendant's negligence.
26.
Ifyou find that Plaintiff is entitled to recover in this actioq he is entitled to rec,over the
amount ofhis reasonable exp€nditues for medicines and medical services, including
physician's charges, rehabilitative expenses, nursing charges, hospital expeffies,
diagnostic study expe'nses and x-ray charges. If you find for the Plaintifi you will award
him that amount which you find from the evidence to be the fair and reasonable value of
the expenses necessarily incurred as a result of his injuries. If you find that the injuries
Plaintiff sustained are permanent, and that he will be rcquired to undertake medical,
hospital, medicinal, rehabilitative, diagnostic study and/or nursing expenses in the future,
you must include in your verdict a sum for those anticipated medical, hospital, medicinal,
rehabilitative, diagnostic study and/or nursing expenses which are reasonably certain to
be incurred in the future.
27. PJI 2:290 Damaqes - Penonal Iniury-Loss of Eaminss - In General
Plaintiff is entitled to be reimbursed for any earnings lost as a result ofhis injuries caused
by the Defendants' negligence from the time ofthe accident to today. Moreover, ifyou
find that as a result of those injuries, RONALD VALERIO has suffered a reduction in his
capacity to eam money in the future, then RONALD VALERIO is also entitled to be
reimbursed for loss of future eamings.
Any award you make for eamings lost to date must not be the result of speculation; any
award must be calculated from the number of days that you find RONALD VALERIO
was disabled from working by the injuries and the amount that you find RONALD
VALERIO would have eamed has he not been disabled.
13 of 343
FILED: BRONX COUNTY CLERK 04/03/2023 09:32 AM INDEX NO. 306522/2014E
NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 04/03/2023
Any award you make for reduction of RONALD VALERIO's eaming capacity in the
future should be determined on the basis of RONALD VALERIO's eamings before the
acciden! the condition of RONALD VALERIO's health, his prospects for advancement
and the probabilities with respect to future eamings before the accident, the extent to
which you find that those prospects or probabilities have been reduced by the injuries, the
length of time tbat you find RONALD VALERIO would reasonably be expected to work
has he note been injured, the natue and hazards of RONALD VALERIO's employment
and any other circumstances which would have an effect on RONALD VALERIO's
eaming capacity.
RONALD VALERIO is now fifty-eight (58) years ofage and has a life expectancy of
seventy-seven (77) according to the mo(ality tables and a work life expectancy of sixty-
five (65) based on the Social Security Administration which considers that to be the
normal age of retirement for someone bom the year RONALD VALERIO was bom.
Such figures are, of course, nothing more than statistical averages. They neither assure
that RONALD VALERIO will have the span of (working) life I have given you nor
assue that RONALD VALERIO's span will not be greater.
The figures I have given you are not binding upon you but may be considered by you
together with your owa experience and the evidence you have heard in determining what
RONALD VALERIO's work life expectancy is. If you find that RONALD VALERIO is
entitled to an award for reduction in eaming capacity in the future, you will fix the dollar
amount of such reduction over the entire period tbat you find Plaintiff will suffer such
reduction and include that amount in your verdict. In your verdict you will state separately
the amount awarded for loss of eamings to date, if any, and, ifyou make an award for loss
of future eamings, you will state in your verdict the amount awarded and the period of
years over which such award is intended to provide compensation. Do not state an amount
per year but only a total amount for the entire period.
28. PJI 2:306 Damases - Persond Iniurv - Subsequent Iniurr - Subseo
Preview
FILED: BRONX COUNTY CLERK 04/03/2023 09:32 AM INDEX NO. 306522/2014E NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 04/03/2023 SAPREME COURT TRIAL TERT',I 20 ') Y Lndry 3o AGAINST a File Na-- "\d I hueby Cutily tlut thk ouue u)6 nid belre HOii. F,:.1:,^.:-r:,,tT Hot ^-,, a lu!, on doy ol /n 20 L2, ud a olrrilbt rqdqeit thsefit lor ttu the urm o1 S {ai*\ ODO tbl DOD a,t., 7 I o ooo 3 Doo al^a q HII:lr II'l.l DKI.' MTE: t< G]!il 1 of 343 FILED: BRONX COUNTY CLERK 04/03/2023 09:32 AM INDEX NO. 306522/2014E NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 04/03/2023 Supreme Court of the State ofNew York Valerio v. Eaton Electric Index: 306522120148 Part 26 Bronx Court EXHIBIT STMET Index: 306522120148 Justice: Paul Alpert, JSC Ronald Valerio Plairtiff Atty: Scott Occhiosgrosso PlairtiffAtty: Gabriela M. Pulla Plailrtifr Defcndant Atty: Andrca Sacco Camacho -versus- Trial begon: 3D12023 I E EfiBTTNO. Eaton Electric e DflCt t DAIE: H Defendant, Trial concluded: 3/9/2023 II' Drtc for Phintiffs Exhibitr - Description Date in Evidence ) Evidence No. I 3t2t23 Certified Union Records 3t2t23 2 3t2t23 Innge sigr 3t2D3 2 2a v2n3 Enlargement of Exhibit 2 312t23 2a 3 3t2t23 Image door with sign 312123 3 3a 3t2123 Enlargement of Exhibit 3 312123 3a 4 3t2D3 Two images on one page, door/steps 312123 4 4a 312121 Enlargemort of Exhibit 4 312D3 4a 5 312123 Illustration 3t2D3 5 6 3U23 Illustration 3t2t23 6 1 312D3 Island Muskoloskeletal Care rccords 3t2D3 7 E 3t2t23 Dr. Grewal 312123 E 9 3t2t23 Operative report 3t2t23 9 l0 313123 Emergency Medical Center records 3t3121 t0 ll 3t3t23 Carlisle St. Martin MD rccords 3t3t23 t2 3t3t23 South Shore Medicine, Dr, Cary Lovine 313123 l2 l3 3t6t23 1040 Tax Rctum 2013, R. Valcrio 1t6t21 ll 2 of 343 FILED: BRONX COUNTY CLERK 04/03/2023 09:32 AM INDEX NO. 306522/2014E NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 04/03/2023 Supreme Court of the State of New York Valerio v. Eaton Electric Index: 306522120148 IiT] Date Plaintil?s Exhibits page 2 Dote Exhibit for II) No. t4 316D3 Economic Summary Charts 3t6D3 t4 l4a 3t6D3 Enlargement of Exhibit I 4 l4b 3/6D3 Enlargement ofExhibit 14 page 2 l5 3t7 D3 North Shore Pain Management Medical Records (498 pages) 3t7n3 l5 l6 318123 Notice to Intro Business Records at Time ofTrial-LIPPAT 3t8n3 t6 't7 318D3 Notice to Intro Business Records-Sports Medicine & Rehab 3t8/23 t7 l8 3t8D3 Notice to Intro Business Records-Thompkin's Pharmacy & Health 318D3 l8 19 3t8t23 N orth Shore 4 l7 / I 4-7 12/ I 6 3t8t23 l9 z0 318123 Notice to Intro Business Records-Huntington Hospital 318t23 20 2l 3t8D3 Notarized letter from Milton Legister 3t8t23 2l 22 318/23 Notice to Intro Business Records-Behavioral Medicine Associates 318123 22 23 3t8D3 Notice for Intro ofcertified Bills into Evidence at Time ofTrial 318/23 23 3 of 343 FILED: BRONX COUNTY CLERK 04/03/2023 09:32 AM INDEX NO. 306522/2014E NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 04/03/2023 Supreme Court of the State ofNew York Valerio v. Eaton Electric Index: 306522120148 ml Drte for Defcrdant's ExhibiB - Description Drtr itr II) Evidence BI 317D3 Image B2 3n/23 Image B3 3n D3 Image B4 3t7 D3 Image C 3nD3 Panicipant and Spouse Rejection Form D 3nD3 Certifi ed pharmacy records 317 D3 D Dr. records 3n D3 E 317 D3 Judicial Subpoena for Dr. Borimir Darakchiev F 3/7 D3 Sign-in sheets (l lpages) G 3t7 D3 lncident/Accident Investigative Report H 317123 Neuro Progress Notes I 3n D3 Dr. Amitina Records 3t7 D3 J K 3t' 23 Prescriptions 3n D3 K L 3/7 D3 Report of MRJ 8/2010 3n D3 L M 3nD3 Dr. Radiology Report 3n/23 M NI 3nD3 Park Place Radiology films 317 D3 NI N2 317D3 Park Place Radiology filrns 3n123 N2 o 3t8D1 Image 3t8t23 o 318123 Image 318D3 P 4 of 343 FILED: BRONX COUNTY CLERK 04/03/2023 09:32 AM INDEX NO. 306522/2014E NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 04/03/2023 Supreme Court of the State of New York Valerio v. Eaton Electric Index: 306522120148 II II Court's Exhibits - Description Dat€ Exhibit No. I II Marked Pleadings 2D8D3 Plahtif s motion in Liminc & Dcfendant's II II Opposition 3Dt23 III II Defendant's motion in Limine 3DD3 Plairtif IV II s Proposed Jury Chargcs 3t9D3 II Defendant's Proposed Request to Charge 319D3 I VI II Jury Note # 3t9D3 VI II Jury Note #2 319123 VIII II Jury Note #3 319123 Vcrdict Shoot x II 3t9D3 Verdict Extract x II 319D3 XI II Exhibit Sheet 319123 II II I II II II II II I II II I II II I II II II II II II II II II 5 of 343 FILED: BRONX COUNTY CLERK 04/03/2023 09:32 AM INDEX NO. 306522/2014E NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 04/03/2023 SUPREME COURT OF TIIE STATE OF NEW YORK Index No.: 3M52212014E COI.]NTYOFBRONX x PLAINTIFI''S PROPOSED RONALDVALERIO, JI]RYCHARGES Plaintitr, -againsh }IAZENAND SAWYE& D.P.C., EATON ELECTRIC, INC. and FIVE STAR ELECTRIC CORPORATION, Defendant. x Plaintitr, RONALD VALERIO, by his attomeys BLOCK O'TOOLE & MURPHY, respectfirlly sets forth the following as Plaintiffs Request to Charge: 1. PJI & 1:20 Introduction Members of the jury, we come now to that portion of the trial where you are instucted on the law applicable to the case and then retire for your final deliberations. You have now heard all the evidence introduced by both sides and, through arguments oftheir respective attomeys you have leamed the conclusions, which each party believes should be drawn from the evidence presented to you. 2. PJI ! 1:21 Review Princioles Stated You will recall that at the beginning ofthe trial I stated for you certain principles so that you could have them in mind as the hial progressed. Briefly, they were that you are bound to accept the law of the case as I give it to yoll" whether or not you agree with it: further that you must not infer Aom my rulings or anything I have said during the trial that I hold any views for or against any party to this lawsuit, my views being completely irrelevant to your detemrination, in any event; further, that you may not draw any inference from an unanswered question nor consider testimony which has been sfricken in reaching your conclusion; further that in deciding the degree of weight you choose to give to the testimony of any particular witnes.i there is no magical formula which can be used. The tests used in your everyday affairs to detemine the reliability or unreliability of statements made to you by others are the tests applied in your deliberations. Among the iterns to be taken into consideration in determining the weight you will assip to the testimony of a witness are the interest or lack of interest of the witness in the outcome ofthe case, the bias or prejudice of the witness if there by any, the age, the appearance, the manner of the witness as he/she gave testimony from the stand, the opportunity that the witness had to observe the facts conceming which he/she testified the probability or improbability of the witness' testimony when viewed in the light of all the other evidence in the case. oouRrs. 3. PJI t 1:22 Falsus in Uno s DGIB]II{o. E \\ I e DISJ 6 a DAIE 6 of 343 FILED: BRONX COUNTY CLERK 04/03/2023 09:32 AM INDEX NO. 306522/2014E i NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 04/03/2023 If you find that any witness has willfirlly testified falsely as to aoy material fac! the law permits you to disregard completely the entire testimony of that witress upon the principle that one who testifies falsely about one material fact is quite likely to testifr falsely about everything. You are not required, however, to consider such a witness as totally unworthy of belief. You may accept so much of his or her testimony as you deem true and disregard what you feel is false. By the processes which I have just described to you, you" as the sole judges of the facts, deterrnine which of the witnesses you will believe, what portion of their testimony you accept and what weight you will give to it 4. PJI t 1:23 Burden ofProof The burden ofproofrests on the Plaintiff. That means tlat it must be established, by a fair preponderance of the credible evidence, that the claims Plaintiff makes are true. The credible evidence means the testimony or exhibits that you find to be worthy to be believed. A preponderance means the greater part of such evidence. That does not mean the greater number ofwitnesses or the greater length oftime taken by either side. The pbrase refers to the quality of the evidence, that is, its convincing quality, the weight and the effect that it has on your minds. The law requires that, in order for the Plaintiffto prevail, the evidence that supports his claims must appeal to you as more nearly representing what took place than that opposed to his claims. If it does not or if it weighs so evenly that you are unable to say that there is preponderance on either side, then you must resolve the question in favor of the Defendants. It is only if the evidence favoring the Plaintiffs claims outweighs the evidence opposed to it that you can find in favor of Plaintiff. 5. PJI 0 1:24 Retuminp to Courtroom If, in the course ofyour deliberations, your recollection of any part ofthe testimony should fail, or you should find yourself in doubt conceming my instructions to you on the law, it is yorn privilege, if you so desire, to retum to the courtroom for the purpose ofhaving such testimony or instructions read to you. 6. PJI Q 1:25 Consider OnIv Testimonv and Erhibits In making the factual determination on which your verdict will be based, you may consider only the exhibits which have been admitted in evidence and the testinony of the witnesses as you have heard it h this courtroom (or as there has been read to you testimony given on examination before trial). Under our rules ofpractice an examination beforc trial is taken under oath and is entifled to equal consideration by you notwithstanding the fact that it was taken prior to trial and outside the courtroom. However, arguments, remarks, and summation of the opposing attomeys are not widence nor is anything that I now say or may have said with regard to the facts, evidence. 7. PJI E l:26 FiveSixths Verdict Itrw t:2GA 7 7 of 343 FILED: BRONX COUNTY CLERK 04/03/2023 09:32 AM INDEX NO. 306522/2014E NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 04/03/2023 While it is important that the views of all jurors be considered, a verdict of five of the six members of the jury will be sufficient under the law. Whenever five of your members are in agreement on a verdic! you may r€port your verdict to the court 8. PJI t 1:27 ExcludeSvmnathv In reaching your verdict you are not to be affected by sympathy for any of the parties, what the reaction of the parties or of the public to your verdict may be, whether it will please or displease anyone, be popular or unpopular or, indeed, any consideration outside the case as it has been presented to you in this the courtroom. You should consider only the evidence-both the testimony and the exhibits-find the facts from what you consider to be the believable evidence, and apply the law as I now give it to you to those facts. Your verdict will be detemrined by the conclusion thus reached, no matter whom the verdict helps or hurts. 9. PJIEl:37 JunFunction [lAV l:ry As the jurors, your frmdamental duty is to determine, from all the evidence that you have heard and the exhibits that have been submitted, what the facts are. You are the sole, the exclusive judges of the facts. In that field you are supreme and neither I nor anyone else may invade your province. 10. PJI 1:38 Courtrs X'unction Itl o \ou6er Ac,l,an6s On the other hand, and with equal emphasis, I charge you that you are requircd to accept the law as it is given to you in this charge and in any instructions that I have given to you during the course of the trial. Whether you agree with the law as given to you by me or not, you are bound by it. You are not to ask anyone else about the law. You should not consider or accept any advice about the law from anyone else but me. The process by which you arrive at a verdict is first, to decide from all ofthe evidence and the exhibits, what the facts are, and second to apply the law as I give it to yor! to the facts as you have decided thern to be. The conclusion thus reached will be your verdict. Your verdict will be in the form of answers to written questions which I will submit to you. 11. Pot .(i,a.,'t4'.. t :q u.^rtt -{ AlVtal ,/b [.'n- -? I (*1, I have endeavored to preside impartially and ilot to express an oplrxon one way or the other as to what you should find the facts to be. In the course of the trial it has been necessary for me to rule on the admission of evidence and on motions made with respect to the applicable law. You must not infer from any such ruling I have made or Aom anything that I have said during the course of the trial that I hold any views for or against either of the parties to this lawsuit. Any views of mine would, in any event, be totally irrelevant since it is your recollection of the evidence and your determination of the issues of fact, which contol. 12,PJI$ 1:40 ConsiderOnlvComoetentEvidencc LI4z t:Z J 8 of 343 FILED: BRONX COUNTY CLERK 04/03/2023 09:32 AM INDEX NO. 306522/2014E NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 04/03/2023 At times during the trial I have sustained objections to questions asked without permitting the witness to answer or where an answer was made, instucted that it be stricken fiom the record and that you disregard it and dismiss it ftom your minds. You may not draw any inference from an unanswered question nor may you consider testimony, which bas been stricken in reaching your decision. The law requires that your decision be made solely upon the competent evidence before you. Such iterns as I have excluded from your consideration were excluded because they were not legally admissible. 13.PJI$1:41 weiehhsTestimonv l' / Vod i'^ ?rel;r"^n' i'^*<'Y*"*e- Lxl;+,5a,.,. The law does no! however, require you to accept all of the evidence I have admitted, even though it be competent. In determining what evidence you will accep! you must make your ovm evaluation of the testimony given by each ofthe witnesses, and detennine the degree of weight you choose to give to his or her testimony. The testimony ofa witness may fail to confonn to the facts as they occurred because he/she is intentionally telling a falsehood, because he./she did not accurately see or hear that about which he/she testifies, because hislher recollection of the event is faulty, or because he/she has not expressed himself&erself clearly in giving his/her testimony. There is no magical formula by which one may evaluate testimony. You bring with you to this courhoom all ofthe experience and background ofyour lives. In your everyday affairs you determine for yourselves the reliability or unreliability of stafements made to you by others. The same tests that you use in your everyday dealings are the tests, which you apply in your deliberations. The interest or lack of interest of any witness in the outcome ofthis case, the bias or prejudice ofa witness, ifthere be any, the age, the appearance, the manner in which the witness gave his/her testimony on the stand, the opportunity that the u/itness had to observe the facts conceming which he/she testified, the probability or improbability of the witness' testimony when viewed in the tight of aU of the other evidence in the case, are all items to be taken into your consideration in deterrnining the weighq if any, you will assign to that witness' testimony. lf such considerations make it appear that there is a discrepancy in the evidence, you will have to consider whether the apparent discrepancy may not be reconciled by fitting the two stories together. If, however, that is not possible, you will then have to determine which of the conflicting versions you will accept. 14. PJI t 1:90 General Instruction-Exnert Witness You will recall that wihesses Dr. Kanwarpaul S. Grewal, M.D. Spinal Surgeoq Dr., Dr. Edwin Richter III, specialist in Physical Medicine and Rehabilitatioq Daniel Wolstein, Ph.D., Vocational Rehabilitation expert, and Debra Dwyer, Ph.D., Economist, Dr. Jonathan Lucb, M.D, a Radiologist, and Dr. Douglas€ohen, M.D., a neurosurgeorl testified conceming their qualifications as experts in their respective field and gave their opinions conceming the issues in the case. When a case involves a matter of science or art or requires special knowledge or skill not ordinarily possessed by the average person, an expert is permitted to state his or her opinion for the inforrnation of the court and jury. The opinions stated by each expert who testified before you were based on particular 4 9 of 343 FILED: BRONX COUNTY CLERK 04/03/2023 09:32 AM INDEX NO. 306522/2014E NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 04/03/2023 facts, as the expert obtained knowledge of them and testified to them before you, or as tlte attomeys who quesfioned the expert asked the expert to assume. You may reject the expert's opinion ifyou find the facts to be different ftom those, which forrned the basis for the opinion. You may also reject the opinion if, after careful consideration of all the evidence in the case, expert and other, you disagree with the opinion In ottrer words, you are not required to acc€pt an expefi's opinion to the exclusion ofthe facts and circumstances disclosed by other testimony. Such an opinion is subject to the same rules conceming reliability as the testimony of any other witnesses. It is given to assist you in reaching a proper conclusion; it is entitled to such weight as you find the expert's qualifications in the field warrant and must be considered by yoq but is not controlling upon your judgment. B/ 15. PJI t 1:91 ceneral Imtructior - Interested Wittrers - Generrllv ,lta- l: Z-, C The Plaintiff, RONALD VALERIO, testifred before you. As a party to the action, he is an interested witness. An interested witness is not necessarily less believable than a disinterested witness. The fact that they are interested in the outcome ofthe case does not mean that they have not told the truth. It is for you to decide ftom the demeanor of the witness on the stand and such other tests as your experience dictates whether or not the testimony has been influenced, intentionally or unintentionally, by their interests. You may, if you consider it proper under all of the circumstances, not believe the testimony of such a witness, even though it is not otherwise challenged or contradicted. However, you are not required to reject the testimony of zuch a witness, and may accept all or such part of their testimony as you find reliable and reject such part as you find unworthy of acceptance. {,V ru. The fact that the witness MILTON LEGESTER was employed by Defendant EATON ELECTRIC INC, and the testimony you have heard of his relationship with his employer may be coosidered by you in deciding whether the testimony of MILTON LEGESTER is in any way influenced by the employment relationship with Defendant EATON ELECTRIC, INC. / 1?. PJI I 1:97 cenerrl Inrtructions-special verdicts p"A I: 26 This case will be decided on the basis of the answers that you give to certain questions that will be submitted to you. Each ofthe questions asked calls for finsert "Ye answer.), (some numerical figure), (some percentage), etc.l While it is important that the views of all jurors be considered, five of the six of you must agree on the answer to any questiorq but the same five person need not agree on all of the answers. When five of you have agreed on any answer, the foreperson ofthe jury will write the answer in the space provided for each answer and each juror will sign in the appropriate place to indicate (his, her) agreement or disagreement. (Where appropriate add: As you will note from the wording of the questions, you need not consider question 2, etc., at all ifyour 5 10 of 343 FILED: BRONX COUNTY CLERK 04/03/2023 09:32 AM INDEX NO. 306522/2014E NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 04/03/2023 answer to question I is'No".) When you have answered all the questions that require answem, report to the court. Do not assume from the questions or from the wording of the questions or from any instuctions on them what the answer should be. 18. -N Negligence is lack ofordinary care. It is a failure to use that degree ofcare that a reasonably prudent person would have used under the same circumstances. Negligence may arise from doing an act that a reasonably prudent person would not have done tmder the same circumstanc€s, or, on the other hand, from failing to do an act that a reasonably prudent person would have done under tle same circumstances. Wts. Negligence requires both a reasonably foreseeable danger of injury to another and conduct that is unreasonable in proportion to that danger. A person is only responsible for the results ofhis or her conduct ifthe risk of injury is reasonably foreseeable. The exact occrrrence or exact rqiury does not have to be foreseeable; but injury as a result of negligent conduct must be not merely possible, but probable. There is negligence ifa reasonably prudent person could foresee injury as a result ofhis or her conducl and acted unreasonably in the light ofwhat could be foreseen. On the other hand, there is no negligence if a reasonably prudent person could not have foreseen any injury as a result of his or her conduc! or acted reasonably in the light ofwbat could have been foreseen. Employment An employer is responsible for the act of its ernployee if the act is in furtherance ofthe employer's business and is within the scope of the employee's authority. An act is within the scope of an employee's authority if it is performed while the employee is engaged generally in the performance of his or her assigned duties or ifthe act is reasonably necessary or incidental to the employment. The employer need not have authorized the specific act in question. Among the factorc you may cofftider in deciding whether MILTON LEGESTER was acting within the furtherance of EATON ELECTRIC, INC's business and within the scope ofhis authority, you may include the connection between the time, place and occasion for the act; the history of the relationstrip between EATON ELECTRIC, INC's and MILTON LEGESTER as spelled out in actual practice; whether the act is one commonly done by such an ernployee; the extent ofdeparture from normal methods of performance and whether the specific act was one tlat EATON ELECTRIC, INC's could reasonably have anticipated. 6 11 of 343 FILED: BRONX COUNTY CLERK 04/03/2023 09:32 AM INDEX NO. 306522/2014E NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 04/03/2023 If you find MILTON LEGESTER negligently caused injury to the plaintiffwhile acting within the scope of his authority and in furtherance of MILTON LEGESTER's business, then MILTON LEGESTER is legally responsible for MILTON LEGESTER's conduct. \/. PJI E 2,272 D"n"ecr-ceo"ot If you find that the Plaintiffis entitled to recover from the Defendants, you must render a verdict in a sum of money that will justly and fairly compensate the Plaintiff for all losses resulting from the injuries Plaintitr sustained 22. PJI I 2:280 Damases-Penonal Iniurr-Iniurv and Pain end Sufferins You may include in your verdict an award for the injuries you find that Plaintiff sufrered and for conscious pain and suffering which you find to have been caused by the negligence of Defendants. The Plaintiff is entitled to recover a sum of money, which will justly and fairly compensate his for injuries and for conscious pain and suffering to date. 23. PJI E 2:280.1 Damages-Personal Iniun-IniulT rnd Pain rnd Sufferitrs In determining the amount, if any, to be awarded Plaintifffor paia and zuffering, you may take into consideration the effect that Plaintiffs injuries may have on Plaintiffs ability to enjoy life. Loss of enjoyment of life involves the loss of the ability to perform daily tasks, to participate in the activities, which were a part of the person's life before the injury, and to experience the pleasures of life. However, a person suffers the loss of enjoyment of life only if the person is aware, at some level, ofthe loss that she has suffered. Ifyou find that Plaintiff, as a result ofhis injuries, suffered some loss ofthe ability to enjoy life and that Plaintiffwas aware of that loss, you may take that loss into consideration in determining the amount to be awarded to Plaintifffor pain and suffering to date. 24. PJI t 2:281 Damae€r-Personal Iniuw-Future-Pemrnence-Life Exoectancv Tables With respect to any of the Ptaintiffs i4iuries or disabilities, the Plaintiff is entitled to recover for future paiq suffering and disability and loss of his ability to enjoy life. ln this regard you should take into consideration the period of time that the i4iuries and disabilities are expected to continue. Ifyou find that the injuries and disabilities arc perrnanent, you should take into consideration the period of time tbat the Plaintiffcan be expected to live. In this cormection it is pointed out to you that PlaintiffRONALD VALERIO is now fifty-eight (58) years of age and can be expected to live for nineteen (19) more years, that is, until age seventy-seven (77), according to the most recent life expectancy tables published by the United States Govemment. Such tables are, of course, nothing more than statistical averages' They neither assure the span of life that I have given you nor assure that the span of plaintiffs life will not be greater. The life 7 12 of 343 FILED: BRONX COUNTY CLERK 04/03/2023 09:32 AM INDEX NO. 306522/2014E NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 04/03/2023 expectancy figure that I have given you is not binding upon yoq but may be considered by you together with your own experience and the evidence you have heard conceming the condition of plaintiffs healfl her habits, employment, and activities in determining whar the Plaintiffs present life expectancy is. 25. Ifyou find that before this accident the plaintiffhad degeneration in his cervical spine and frrther find that because ofthe accidetrt this condition was aggravated or activated so as to cause increased suffering and disability, then the plaintiffis entitled to recover for any increased disability or pain resulting from such aggravation. He is not, however, entitled to recover for any physical ailment or disability which existed prior to the accident or for any injuries from which he may now be suffering which were not caused or contributed to by the accident. The plaintiff can recover only for damage caused by aggravation ofthe pre-existing conditiorl not the condition itself. The plaintiff should be compensatd only to the extent that you find his condition was made worse by the defendant's negligence. 26. Ifyou find that Plaintiff is entitled to recover in this actioq he is entitled to rec,over the amount ofhis reasonable exp€nditues for medicines and medical services, including physician's charges, rehabilitative expenses, nursing charges, hospital expeffies, diagnostic study expe'nses and x-ray charges. If you find for the Plaintifi you will award him that amount which you find from the evidence to be the fair and reasonable value of the expenses necessarily incurred as a result of his injuries. If you find that the injuries Plaintiff sustained are permanent, and that he will be rcquired to undertake medical, hospital, medicinal, rehabilitative, diagnostic study and/or nursing expenses in the future, you must include in your verdict a sum for those anticipated medical, hospital, medicinal, rehabilitative, diagnostic study and/or nursing expenses which are reasonably certain to be incurred in the future. 27. PJI 2:290 Damaqes - Penonal Iniury-Loss of Eaminss - In General Plaintiff is entitled to be reimbursed for any earnings lost as a result ofhis injuries caused by the Defendants' negligence from the time ofthe accident to today. Moreover, ifyou find that as a result of those injuries, RONALD VALERIO has suffered a reduction in his capacity to eam money in the future, then RONALD VALERIO is also entitled to be reimbursed for loss of future eamings. Any award you make for eamings lost to date must not be the result of speculation; any award must be calculated from the number of days that you find RONALD VALERIO was disabled from working by the injuries and the amount that you find RONALD VALERIO would have eamed has he not been disabled. 13 of 343 FILED: BRONX COUNTY CLERK 04/03/2023 09:32 AM INDEX NO. 306522/2014E NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 04/03/2023 Any award you make for reduction of RONALD VALERIO's eaming capacity in the future should be determined on the basis of RONALD VALERIO's eamings before the acciden! the condition of RONALD VALERIO's health, his prospects for advancement and the probabilities with respect to future eamings before the accident, the extent to which you find that those prospects or probabilities have been reduced by the injuries, the length of time tbat you find RONALD VALERIO would reasonably be expected to work has he note been injured, the natue and hazards of RONALD VALERIO's employment and any other circumstances which would have an effect on RONALD VALERIO's eaming capacity. RONALD VALERIO is now fifty-eight (58) years ofage and has a life expectancy of seventy-seven (77) according to the mo(ality tables and a work life expectancy of sixty- five (65) based on the Social Security Administration which considers that to be the normal age of retirement for someone bom the year RONALD VALERIO was bom. Such figures are, of course, nothing more than statistical averages. They neither assure that RONALD VALERIO will have the span of (working) life I have given you nor assue that RONALD VALERIO's span will not be greater. The figures I have given you are not binding upon you but may be considered by you together with your owa experience and the evidence you have heard in determining what RONALD VALERIO's work life expectancy is. If you find that RONALD VALERIO is entitled to an award for reduction in eaming capacity in the future, you will fix the dollar amount of such reduction over the entire period tbat you find Plaintiff will suffer such reduction and include that amount in your verdict. In your verdict you will state separately the amount awarded for loss of eamings to date, if any, and, ifyou make an award for loss of future eamings, you will state in your verdict the amount awarded and the period of years over which such award is intended to provide compensation. Do not state an amount per year but only a total amount for the entire period. 28. PJI 2:306 Damases - Persond Iniurv - Subsequent Iniurr - Subseo