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FILED: DUTCHESS COUNTY CLERK 08/31/2023 03:51 PM INDEX NO. 2019-53685
NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 08/31/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
____________________..____________________-...________________..--.._____Ç
FRANK DISPENSA and KATHY DISPENSA, Index No. 2019-536E5
Plaintiff,
-against- REPLY
AFFIRMATIO N
MEDICAL DIAGNOSTIC IMAGING, PLLC and
GARY D. GROSSMAN, M.D.,
Defendants.
________________.......__________________________________________________Ç
Wayne M. Rubin, an attorney duly licensed to practice law in the State of New Yo k, affirms the
following under the penalties of perjury:
1. I am associated with the law firm of Feldman, Leidman, Collins & Sappe, P.C., attorneys for the
defendants, Medical Diagnostic Imaging, PLLC, and Gary D. Grossman, M.D.
plaintiffs' defendants'
2. This affirmation is submitted in reply to the opposition to the motion to
vacate the judgment in favor of the plaintiffs, entered on June 22, 2023 (NYSCEF Doc. Nos. 105, 112),
and for a new trial on liability and damages.
REPLY POINT I
PLAINTIFFS'
RESPONSE TO PRELIMINARY STATEMENT
3. In opposing the motion, plaintiffs do not dispute that Mr. Dispensa did not suffer any physical
defendants'
pain as a result of the malpractice, or had to undergo any surgery or additional treatment as
a result of the delayed diagnosis.
4. With respect to the defense position that even if the meningioma had been detected earlier,
plaintiffs'
expert neuro-ophthalmologist, Dr. Yanina Kostina, merely testified that there we s a good
FELDMAN, KLEIDMAN, COLLINS & SAPPE,L1.P. " ATTORNEYS AT LAW " 995 MAIN STREET " FISHKILL,NEW YO tK 12524
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chance that the vision in his left eye, which had been 20/25, could have been preserved at 20/40 (Exhibit
E, bates stamped pp. 050-051)1, plaintiffs assert:
As the defense's own experts testified, if the condition had been properly diagnosed in
March of 2018, Mr. Dispensa might have maintained 20/40 or better vision.
(Abrams aff, paragraph 3). In fact, there was no such testimony by the defense experts that
earlier diagnosis might have resulted in vision of 20/40 or better. If there had been, certainly
plaintiffs would have cited page and line of such testimony, particularly since they attache d the
defendants'
transcript of the trial te,stimony of Dr. Harold Pomerantz, the neuro-ophthalm >logy
expert. Rather, at paragraphs 16 of their affirmation in opposition, plaintiffs merely attack Dr.
Pomerantz'
theory of what caused plaintiff's blindness and mention his concession that 20/20
vision is better than 20/40.
"experts"
5. And, while plaintiffs reiterate, at paragraph 15, that defense testified that Mr.
Dispensa's left eye vision might have been better than 20/40 with earlier diagnosis, they < id not attach
defendants'
the transcripts of the two other experts, Drs. March Hertz and Daniel Brodoff, who are
radiologists. Moreover, those experts did not offer an opinion on plaintiff's prognosis had the diagnosis
been made earlier, and given their specialty, would not be expected to. The transcript of 1heir trial
testimony is attached as Exhibit G.
6. Incredibly, in their preliminary statement plaintiffs also claim that Mr. Dispens a "is now
unable to drive". (Abrams aff, paragraph 5). In fact, he testified that at 83 he drives loca ly during the
1 maintain
At paragraph 18 of their opposition plaintiffs that Dr. Kostina testified that plaintiff had a 70 to ::0 percent chance
better"
of "keeping the vision in his left eye at 20/40 or had he been treated sooner. However, her testimor y was that had he
been treated earlier he had a "significant chance of keeping the vision of at least 20/40 in his left eye". (Exhibit B, page 51).
At paragraph 19 plaintiffs then cite to testimony from Dr. Kostina about limitations in Mr. Dispensa's visit n that are not
clients'
supported by their testimony that he can drive, read with help of a magnifying glass, and takes clas;es offered to
seniors at Marist College. (Exhibit B, pp 27-28, 32-33; Exhibit F, page 3); and, they continue to endorse E r. Kostina's
utterly ridiculous assertion that one cannot see in three dimensions with just one eye.
2.
FELDMAN, KLElDMAN, COLLINS & SAPPE, LLP. " ATTORNEYS AT LAW " 995 MAIN STREET " FISHKILL,NEW fORK 12524
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day. (Exhibit B, pp 027-028)2. Moreover, the other limitations exaggerated by the plainti: Ts are not the
product of his loss of vision, but because even in the absence of malpractice his vision wculd have only
been 20/40 in both eyes.
REPLY POINT H
THE COURT MAY TAKE JUDICIAL NOTICE THAT NEW YORK PERMITS
A PERSON WITH 20/40 VISION IN ONE EYE TO DRIVE.
7. Plaintiffs complain that the moving papers refer to New York Department of Vehicle website,
which indisputably indicates that persons with 20/40 vision in one eye may obtain a drive r's license;
ts'
and, they contend they tried to introduce that same evidence at trial, and that the defendar objection to
it was sustained. (Abrams aff, pars 11 and 21). However, the plaintiffs have not attached any portion of
the trial transcript showing that such an offer and objection was made; attorney Abrams does not claim
to have attended the trial; and, while Mr. Scotto had submitted an affidavit erroneously cc ntending that
no objection was made to question #2 of the verdict sheet, he is silent about trying to introduce evidence
of the DMV requirements for driving. Moreover, even had such an objection had been m ade and
sustained, plaintiffs entirely fail to articulate how it would have prejudiced them. It is undisputed that
plaintiff's vision in his right eye is 20/40, that he drives, and that despite that limited vision his driver's
license was renewed. (Exhibit B, pp 028, 048).
8. Furthermore, in addition to being on the Department of Motor Vehicle website, the regulations
of the Commissioner of the Department of Motor Vehicles also specify that the minimal l evel of visual
acuity needed to drive is 20/40 in either or both eyes with or without corrective lenses. 1 i NYCRR
5.3(a), 5.4(a)(1). This Court may take judicial notice of the Department of Motor Vehicles regulations
and website. CPLR 4511(b); Singh v Siddique, 2016 WL 3583905, at *5 (Sup Ct, Kings Co 2016);
2
At paragraph 14 of their opposition, plaintiffs maintain erroneously that, "After his vision loss, Mr. Dispe isa was unable to
glass."
read the paper, though he tried with a magnifying In fact, his testimony was that he can read if the font is large, or by
using a magnifying glass, which he always carries around with him. (Exhibit B, pp 032-033).
3.
FELDMAN, KLEIDMAN, COLLINS & SAPPE, LL.P. " ATTORNEYS AT LAW " 995 MAIN STREET " FISHKILL, NEW NORK 12524
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Baran v Weitsman's Scrap Yard, 47 Misc. 3d 512, 514 (Jamestown City Court 2015); Gru1berger v S &
Z Service Station Inc., 2010 WL 2679887, at *3 (Sup Ct, Kings Co 2010); People v Stuck, 54 Misc.2d
811, 812-813 (Allegany Cty Co 1967).
REPLY POINT HI
DEFENDANT OBJECTED ON THE RECORD TO QUESTION #2 ON THE VE (DICT
SHEET, WHICH QUESTION WAS IMPROPER AND NOT HARMLESS ERROR
9. In opposition to the defendant's position that a new trial should be granted baset on the
outcome"
inclusion of the phrase "diminishing his chances of a better as part of Question 92 of the
verdict sheet, plaintiffs aver:
Defendants have waived their objection to the jury charge by failing to object at to al-
and have not cited to their objection in the record-and are barred from objecting:1ow.
The bench conference at which the verdict sheet language was decided was not he d on
the record. However, at the bench conference, Question #2, as written on the verdict
sheet, was discussed before the Judge. Counsel for Defendants did not raise any
objection. [Affirmation of Jared Scotto, Esq., attached herein as Exh. 1.]
(Abrams aff, par 23). However, plaintiffs are again in error. Before summations there was a conference.
on the record concerning the propriety of Question #2, and as indicated by the attached trin1script of that
proceeding, defense counsel clearly raised an objection to the question. (Exhibit H, pp 5 - · 7).
10. After erroneously contending that no objection was raised to the verdict sheet :1uestion,
charge"
plaintiffs then contend that in any event the "jury was proper; and, they go on to :ite a string of
eight cases involving loss of chance. (Abrams, par 25). However, none of those cases raise an issue with
respect to the correctness of the verdict sheet, and only one, Mortenson v. Memorial Hoss., 105 A.D.2d
(1"
151 Dep't 1984), even mentioned the charge and verdict question. The plaintiff in that case wanted
the jury to be charged that he was entitled to recover if there was any possibility that earl er treatment
would have saved his leg, which the trial court and the ppellate Division rejected, holding that there
must be a substantial possibility of a better outcome. With respect to the jury question, t le First
4.
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Department indicated that it would be permissible to ask the jury if the alleged negligence 'vas a
substantial factor in bringing around the loss of the plaintiff's leg, or alternatively, if the negligence
deprived him of a substantial possibility of avoiding the loss. (105 A.D.2d at 159). Here, the portion of
outcome'
the language in Question #2 consisting of "or diminishing his chances of a better is not only
possibility"
unnecessary, but it fails to convey that there must be a "substantial of a better outcome, thus
allowing the jury to improperly find proximate cause if there was any diminution of the ch ince of a
better outcome.
11. Finally, plaintiffs appear to argue that the correctness of the verdict sheet question goes to the
weight of the evidence, and thus entitled to the deferential review applicable to weight of evidence
challenges. (Abrams aff, pars 9-10). They are incorrect. An error in the verdict sheet requires reversal
unless it is harmless. Bell v City of New York, 256 A.D.2d 290 (2d Dep't 1998); see Willi uns v
Brosnahan, 295 A.D.2d 971, 973 (4th Dep't (absence of prejudice).
REPLY POINT IV
THE JURIES AWARD OF DAMAGES MATERIALLY
DEVIATED FROM REASONABLE COMPENSATION.
Plaintiffs'
12. gross exaggeration of the value of their case begins with the first lost of vision
(1d
case they cite, Villaseca v. City of New York, 48 A.D.3d 218 Dep't 2008). There the 141aintiff was
50 years old at the time of the accident on June 13, 2000. (2001 WL 36178162 [complaint]; 2007 WL
[plaintiffs'
5910578 at 8 brief on appeal]). Mr. Dispensa was 78. In Villaseca, the case was tried six
years after the accident (5 here), and the Bronx jury awarded him $2,000,000 for past pain and suffering
(or about $3,000,000 in 2023 dollars; Mr. Dispensa was awarded $1,100,000) and $6,000,000 future
pain and suffering for a period of 23 years. (2006 WL 6902698 [verdict sheet]). The Appellate Division
reduced the award for future pain and suffering to $3,000,000. The decision of the First D:partment
indicates that Mr. Villaseca's injuries were horribly worse than those of Mr. Dispensa. Mr. Villaseca
5.
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lost total vision in his good eye, and his remaining eye had a pre-existing condition such tB at he only had
peripheral vision. As such, unlike Mr. Dispensa, he was unable to drive. He was also unalle to return
to work. (2007 WL 5910578 at 18). Furthermore, the incident that gave rise to his loss of T ision was
accompanied by devastating physical pain, something totally absent from Mr. Dispensa's tituation.
According to the Appellate Division decision, Mr. Villaseca was injured when "an eight-year-old
emotionally disturbed student suddenly slammed [a door] against the side of the teacher's 1tead. The
teacher suffered a detached retina of the right eye, and notwithstanding nine surgical procedures, he
eventually lost sight in that eye. The eye deteriorated to a discolored, opaque appearance, g iving him
continuous pain that was not likely to abate until such time as he elected to undergo the implantation of
eye."
a false (48 A.D.3d at 219). Furthermore, according to the plaintiff's brief, during the 18 months
excruciating"
over which the 9 surgeries were performed, the "pain was unremitting and in the injured
eye. (2007 WL 5910578 at 17). And, Villaseca did not involve a situation where the good oye would,
even in the absence of any negligence, not have returned to its former level of acuity.
13. Plaintiffs also tout that in Villaseca the plaintiff wife received a reduced award of $250,000
for past loss of services and $500,000 for future loss of services. Aside from the period of s pouse's loss
in Villaseca covering more than twice that here, the Dispensas did not produce any evidence of the value
were.3
of any loss of services, let alone any specifies of what there
3 even the other loss of consortium cases cited by plaintiff, Nunez v. City of New York, 85 A.D 3d 885 (2d
Furthermore,
(1"
Dep't 2011) and Penn v. Amchem Products, 85 A.D.3d 475 Dep't 2011) do not remotely support the awa d of $250,000
in this case. In Nunez, where the loss of services award was reduced to $350,000, the plaintiff was 48 years ( ld at the time
he fell 30 feet as a result of a work-related accident. His injuries included a fracture of his skull's left tempon 1 bone; a
fracture of his mandibular bone's right coronoid process; a comminuted fracture of the right side of his skull's lateral
pterygoid plate; a comminuted fracture a fracture of his left hip's acetabulum;
of his skull's zygomaticomaxillary
complex; a
fracture of the right side of his sacrum; fractures of his pelvis's left and right inferior pubic rami, right iliac wing, right
sacrum, and right superior pubic ramus; a transscaphoid perilunate fracture of his left wrist; a transscaphoid p:rilunate
fracture and dislocation wrist; a perforation
of his right of his bladder; and head injuries that produced a hemc rrhage of his
right inferior subdural
frontal
lobe, hygromas and damage of his brain. He was in a coma for two months, his wrists had to
be fused (obviously a barrier to any work, let alone work around the home), and he suffered diminished cognitive function.
(2009 WL 2342627). Notably, Penn was represented by the firm of Weitz & Luxenberg, yet in support of the r position here
they do not indicate anything about the age of the injured plaintiff in that action, or anything about the specifi:s of the
husband's injuries other than suffering from mesothelioma, which, given the reduced award of $1,500,000 fo> past pain and
6.
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14. Continuing along with their wholly inaccurate characterization of Mr. Dispense 's damages is
plaintiffs'
reliance on Sanchez v. Project Adventure, a case where Weitz & Luxenberg rep:'esented the
plaintiff. Here, plaintiffs maintain that in Sanchez "the jury award for a minor who lost virion in one
eye was reduced to a total of $2,963,322.91 for past damages alone in 2004 - or
ultimately
(18t
$4,881,946.49 in 2023 dollars. 2004 WL 6069022 (Sup. Ct. N.Y. Feb. 6, 2004, aff'd 12 A. D.3d 208
2004)."
Dep't (Abrams aff, par 33). In fact, the $2,963,322.91 sum reflected the present v;due of all
damages, and the award to the minor for past pain and suffering was reduced to $1,000,000.
Furthermore, counsel's Westlaw citation is to the February 6, 2004, judgment entered by the Bronx
Supreme Court, and does not indicate the period of time corresponding to past pain and su:fering, or
whether any physical pain was involved. Notably, if counsel had looked at the brief they s abmitted for
their client in Sanchez, they would have observed that the incident occurred in 1994, more than 9 years
before the trial, and their client suffered significant physical and psychological pain throug h that period
and beyond:
Plaintiff testified that he was struck [by a bungee cord] while waiting to use the zip line;
Mr. Gaines "hit the brake", and plaintiff was struck in the right eye; he "fell to the ground
pain"
and to this day I remember the (679); he would not wish that kind of "pain or
anybody"; he also saw blood. He stated, "I was down. I had my hand on my face. T he
initial shock of the incident, I really didn't know what actually happened. Um, less han
ten seconds later, though, my brain was hurting me. I don't know, and I had my hands up
here and I looked at what happened, and um, I had blood on my hands and then my eye
just - I can't even explain what was on with but it was and then I
going it, um, hurting,
truck"
was directed to a (679-80). People tried to wipe the blood from plaintiffs eye, but
were not successful (680).
He was taken by ambulance to Northern Westchester Hospital, but because he was Mnly
in terrible pain (681-
15, he was not treated until his mother could sign a consent; he was
82). Surgery was performed under general anesthesia to repair a tear duct and other
injuries, but he did not know exactly what was done (682). He remembered the hon or of
having tubing attached to his eye to prevent tearing. He was admitted for a week an:1 had
stationary."
to remain "pretty much His physician, Dr. Mooney, finally removed the
suffering and $2,000,000 for future pain and suffering, indicates
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FILED: DUTCHESS COUNTY CLERK 08/31/2023 03:51 PM INDEX NO. 2019-53685 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 08/31/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS ____________________..____________________-...________________..--.._____Ç FRANK DISPENSA and KATHY DISPENSA, Index No. 2019-536E5 Plaintiff, -against- REPLY AFFIRMATIO N MEDICAL DIAGNOSTIC IMAGING, PLLC and GARY D. GROSSMAN, M.D., Defendants. ________________.......__________________________________________________Ç Wayne M. Rubin, an attorney duly licensed to practice law in the State of New Yo k, affirms the following under the penalties of perjury: 1. I am associated with the law firm of Feldman, Leidman, Collins & Sappe, P.C., attorneys for the defendants, Medical Diagnostic Imaging, PLLC, and Gary D. Grossman, M.D. plaintiffs' defendants' 2. This affirmation is submitted in reply to the opposition to the motion to vacate the judgment in favor of the plaintiffs, entered on June 22, 2023 (NYSCEF Doc. Nos. 105, 112), and for a new trial on liability and damages. REPLY POINT I PLAINTIFFS' RESPONSE TO PRELIMINARY STATEMENT 3. In opposing the motion, plaintiffs do not dispute that Mr. Dispensa did not suffer any physical defendants' pain as a result of the malpractice, or had to undergo any surgery or additional treatment as a result of the delayed diagnosis. 4. With respect to the defense position that even if the meningioma had been detected earlier, plaintiffs' expert neuro-ophthalmologist, Dr. Yanina Kostina, merely testified that there we s a good FELDMAN, KLEIDMAN, COLLINS & SAPPE,L1.P. " ATTORNEYS AT LAW " 995 MAIN STREET " FISHKILL,NEW YO tK 12524 1 of 11 FILED: DUTCHESS COUNTY CLERK 08/31/2023 03:51 PM INDEX NO. 2019-53685 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 08/31/2023 chance that the vision in his left eye, which had been 20/25, could have been preserved at 20/40 (Exhibit E, bates stamped pp. 050-051)1, plaintiffs assert: As the defense's own experts testified, if the condition had been properly diagnosed in March of 2018, Mr. Dispensa might have maintained 20/40 or better vision. (Abrams aff, paragraph 3). In fact, there was no such testimony by the defense experts that earlier diagnosis might have resulted in vision of 20/40 or better. If there had been, certainly plaintiffs would have cited page and line of such testimony, particularly since they attache d the defendants' transcript of the trial te,stimony of Dr. Harold Pomerantz, the neuro-ophthalm >logy expert. Rather, at paragraphs 16 of their affirmation in opposition, plaintiffs merely attack Dr. Pomerantz' theory of what caused plaintiff's blindness and mention his concession that 20/20 vision is better than 20/40. "experts" 5. And, while plaintiffs reiterate, at paragraph 15, that defense testified that Mr. Dispensa's left eye vision might have been better than 20/40 with earlier diagnosis, they < id not attach defendants' the transcripts of the two other experts, Drs. March Hertz and Daniel Brodoff, who are radiologists. Moreover, those experts did not offer an opinion on plaintiff's prognosis had the diagnosis been made earlier, and given their specialty, would not be expected to. The transcript of 1heir trial testimony is attached as Exhibit G. 6. Incredibly, in their preliminary statement plaintiffs also claim that Mr. Dispens a "is now unable to drive". (Abrams aff, paragraph 5). In fact, he testified that at 83 he drives loca ly during the 1 maintain At paragraph 18 of their opposition plaintiffs that Dr. Kostina testified that plaintiff had a 70 to ::0 percent chance better" of "keeping the vision in his left eye at 20/40 or had he been treated sooner. However, her testimor y was that had he been treated earlier he had a "significant chance of keeping the vision of at least 20/40 in his left eye". (Exhibit B, page 51). At paragraph 19 plaintiffs then cite to testimony from Dr. Kostina about limitations in Mr. Dispensa's visit n that are not clients' supported by their testimony that he can drive, read with help of a magnifying glass, and takes clas;es offered to seniors at Marist College. (Exhibit B, pp 27-28, 32-33; Exhibit F, page 3); and, they continue to endorse E r. Kostina's utterly ridiculous assertion that one cannot see in three dimensions with just one eye. 2. FELDMAN, KLElDMAN, COLLINS & SAPPE, LLP. " ATTORNEYS AT LAW " 995 MAIN STREET " FISHKILL,NEW fORK 12524 2 of 11 FILED: DUTCHESS COUNTY CLERK 08/31/2023 03:51 PM INDEX NO. 2019-53685 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 08/31/2023 day. (Exhibit B, pp 027-028)2. Moreover, the other limitations exaggerated by the plainti: Ts are not the product of his loss of vision, but because even in the absence of malpractice his vision wculd have only been 20/40 in both eyes. REPLY POINT H THE COURT MAY TAKE JUDICIAL NOTICE THAT NEW YORK PERMITS A PERSON WITH 20/40 VISION IN ONE EYE TO DRIVE. 7. Plaintiffs complain that the moving papers refer to New York Department of Vehicle website, which indisputably indicates that persons with 20/40 vision in one eye may obtain a drive r's license; ts' and, they contend they tried to introduce that same evidence at trial, and that the defendar objection to it was sustained. (Abrams aff, pars 11 and 21). However, the plaintiffs have not attached any portion of the trial transcript showing that such an offer and objection was made; attorney Abrams does not claim to have attended the trial; and, while Mr. Scotto had submitted an affidavit erroneously cc ntending that no objection was made to question #2 of the verdict sheet, he is silent about trying to introduce evidence of the DMV requirements for driving. Moreover, even had such an objection had been m ade and sustained, plaintiffs entirely fail to articulate how it would have prejudiced them. It is undisputed that plaintiff's vision in his right eye is 20/40, that he drives, and that despite that limited vision his driver's license was renewed. (Exhibit B, pp 028, 048). 8. Furthermore, in addition to being on the Department of Motor Vehicle website, the regulations of the Commissioner of the Department of Motor Vehicles also specify that the minimal l evel of visual acuity needed to drive is 20/40 in either or both eyes with or without corrective lenses. 1 i NYCRR 5.3(a), 5.4(a)(1). This Court may take judicial notice of the Department of Motor Vehicles regulations and website. CPLR 4511(b); Singh v Siddique, 2016 WL 3583905, at *5 (Sup Ct, Kings Co 2016); 2 At paragraph 14 of their opposition, plaintiffs maintain erroneously that, "After his vision loss, Mr. Dispe isa was unable to glass." read the paper, though he tried with a magnifying In fact, his testimony was that he can read if the font is large, or by using a magnifying glass, which he always carries around with him. (Exhibit B, pp 032-033). 3. FELDMAN, KLEIDMAN, COLLINS & SAPPE, LL.P. " ATTORNEYS AT LAW " 995 MAIN STREET " FISHKILL, NEW NORK 12524 3 of 11 FILED: DUTCHESS COUNTY CLERK 08/31/2023 03:51 PM INDEX NO. 2019-53685 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 08/31/2023 Baran v Weitsman's Scrap Yard, 47 Misc. 3d 512, 514 (Jamestown City Court 2015); Gru1berger v S & Z Service Station Inc., 2010 WL 2679887, at *3 (Sup Ct, Kings Co 2010); People v Stuck, 54 Misc.2d 811, 812-813 (Allegany Cty Co 1967). REPLY POINT HI DEFENDANT OBJECTED ON THE RECORD TO QUESTION #2 ON THE VE (DICT SHEET, WHICH QUESTION WAS IMPROPER AND NOT HARMLESS ERROR 9. In opposition to the defendant's position that a new trial should be granted baset on the outcome" inclusion of the phrase "diminishing his chances of a better as part of Question 92 of the verdict sheet, plaintiffs aver: Defendants have waived their objection to the jury charge by failing to object at to al- and have not cited to their objection in the record-and are barred from objecting:1ow. The bench conference at which the verdict sheet language was decided was not he d on the record. However, at the bench conference, Question #2, as written on the verdict sheet, was discussed before the Judge. Counsel for Defendants did not raise any objection. [Affirmation of Jared Scotto, Esq., attached herein as Exh. 1.] (Abrams aff, par 23). However, plaintiffs are again in error. Before summations there was a conference. on the record concerning the propriety of Question #2, and as indicated by the attached trin1script of that proceeding, defense counsel clearly raised an objection to the question. (Exhibit H, pp 5 - · 7). 10. After erroneously contending that no objection was raised to the verdict sheet :1uestion, charge" plaintiffs then contend that in any event the "jury was proper; and, they go on to :ite a string of eight cases involving loss of chance. (Abrams, par 25). However, none of those cases raise an issue with respect to the correctness of the verdict sheet, and only one, Mortenson v. Memorial Hoss., 105 A.D.2d (1" 151 Dep't 1984), even mentioned the charge and verdict question. The plaintiff in that case wanted the jury to be charged that he was entitled to recover if there was any possibility that earl er treatment would have saved his leg, which the trial court and the ppellate Division rejected, holding that there must be a substantial possibility of a better outcome. With respect to the jury question, t le First 4. FELDMAN, KLE1DMAN,COLLINS & SAPPE, L.LP. " ATTORNEYS AT LAW " 995 MAIN STREET " FISHKILL,NEW YORK 12524 4 of 11 FILED: DUTCHESS COUNTY CLERK 08/31/2023 03:51 PM INDEX NO. 2019-53685 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 08/31/2023 Department indicated that it would be permissible to ask the jury if the alleged negligence 'vas a substantial factor in bringing around the loss of the plaintiff's leg, or alternatively, if the negligence deprived him of a substantial possibility of avoiding the loss. (105 A.D.2d at 159). Here, the portion of outcome' the language in Question #2 consisting of "or diminishing his chances of a better is not only possibility" unnecessary, but it fails to convey that there must be a "substantial of a better outcome, thus allowing the jury to improperly find proximate cause if there was any diminution of the ch ince of a better outcome. 11. Finally, plaintiffs appear to argue that the correctness of the verdict sheet question goes to the weight of the evidence, and thus entitled to the deferential review applicable to weight of evidence challenges. (Abrams aff, pars 9-10). They are incorrect. An error in the verdict sheet requires reversal unless it is harmless. Bell v City of New York, 256 A.D.2d 290 (2d Dep't 1998); see Willi uns v Brosnahan, 295 A.D.2d 971, 973 (4th Dep't (absence of prejudice). REPLY POINT IV THE JURIES AWARD OF DAMAGES MATERIALLY DEVIATED FROM REASONABLE COMPENSATION. Plaintiffs' 12. gross exaggeration of the value of their case begins with the first lost of vision (1d case they cite, Villaseca v. City of New York, 48 A.D.3d 218 Dep't 2008). There the 141aintiff was 50 years old at the time of the accident on June 13, 2000. (2001 WL 36178162 [complaint]; 2007 WL [plaintiffs' 5910578 at 8 brief on appeal]). Mr. Dispensa was 78. In Villaseca, the case was tried six years after the accident (5 here), and the Bronx jury awarded him $2,000,000 for past pain and suffering (or about $3,000,000 in 2023 dollars; Mr. Dispensa was awarded $1,100,000) and $6,000,000 future pain and suffering for a period of 23 years. (2006 WL 6902698 [verdict sheet]). The Appellate Division reduced the award for future pain and suffering to $3,000,000. The decision of the First D:partment indicates that Mr. Villaseca's injuries were horribly worse than those of Mr. Dispensa. Mr. Villaseca 5. FELDMAN, KLElDMAN, COLLINS & SAPPE, L.LP. " ATTORNEYSAT LAW " 995 MAIN STREET " RSHKILL, NEW YCRK 12524 5 of 11 FILED: DUTCHESS COUNTY CLERK 08/31/2023 03:51 PM INDEX NO. 2019-53685 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 08/31/2023 lost total vision in his good eye, and his remaining eye had a pre-existing condition such tB at he only had peripheral vision. As such, unlike Mr. Dispensa, he was unable to drive. He was also unalle to return to work. (2007 WL 5910578 at 18). Furthermore, the incident that gave rise to his loss of T ision was accompanied by devastating physical pain, something totally absent from Mr. Dispensa's tituation. According to the Appellate Division decision, Mr. Villaseca was injured when "an eight-year-old emotionally disturbed student suddenly slammed [a door] against the side of the teacher's 1tead. The teacher suffered a detached retina of the right eye, and notwithstanding nine surgical procedures, he eventually lost sight in that eye. The eye deteriorated to a discolored, opaque appearance, g iving him continuous pain that was not likely to abate until such time as he elected to undergo the implantation of eye." a false (48 A.D.3d at 219). Furthermore, according to the plaintiff's brief, during the 18 months excruciating" over which the 9 surgeries were performed, the "pain was unremitting and in the injured eye. (2007 WL 5910578 at 17). And, Villaseca did not involve a situation where the good oye would, even in the absence of any negligence, not have returned to its former level of acuity. 13. Plaintiffs also tout that in Villaseca the plaintiff wife received a reduced award of $250,000 for past loss of services and $500,000 for future loss of services. Aside from the period of s pouse's loss in Villaseca covering more than twice that here, the Dispensas did not produce any evidence of the value were.3 of any loss of services, let alone any specifies of what there 3 even the other loss of consortium cases cited by plaintiff, Nunez v. City of New York, 85 A.D 3d 885 (2d Furthermore, (1" Dep't 2011) and Penn v. Amchem Products, 85 A.D.3d 475 Dep't 2011) do not remotely support the awa d of $250,000 in this case. In Nunez, where the loss of services award was reduced to $350,000, the plaintiff was 48 years ( ld at the time he fell 30 feet as a result of a work-related accident. His injuries included a fracture of his skull's left tempon 1 bone; a fracture of his mandibular bone's right coronoid process; a comminuted fracture of the right side of his skull's lateral pterygoid plate; a comminuted fracture a fracture of his left hip's acetabulum; of his skull's zygomaticomaxillary complex; a fracture of the right side of his sacrum; fractures of his pelvis's left and right inferior pubic rami, right iliac wing, right sacrum, and right superior pubic ramus; a transscaphoid perilunate fracture of his left wrist; a transscaphoid p:rilunate fracture and dislocation wrist; a perforation of his right of his bladder; and head injuries that produced a hemc rrhage of his right inferior subdural frontal lobe, hygromas and damage of his brain. He was in a coma for two months, his wrists had to be fused (obviously a barrier to any work, let alone work around the home), and he suffered diminished cognitive function. (2009 WL 2342627). Notably, Penn was represented by the firm of Weitz & Luxenberg, yet in support of the r position here they do not indicate anything about the age of the injured plaintiff in that action, or anything about the specifi:s of the husband's injuries other than suffering from mesothelioma, which, given the reduced award of $1,500,000 fo> past pain and 6. FELDMAN, KLEIDMAN, COWNS & SAPPE,LLP. " ATTORNEYS AT LAW " 995 MAIN STREET " RSHKILL, NEW YOf K 12524 6 of 11 FILED: DUTCHESS COUNTY CLERK 08/31/2023 03:51 PM INDEX NO. 2019-53685 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 08/31/2023 14. Continuing along with their wholly inaccurate characterization of Mr. Dispense 's damages is plaintiffs' reliance on Sanchez v. Project Adventure, a case where Weitz & Luxenberg rep:'esented the plaintiff. Here, plaintiffs maintain that in Sanchez "the jury award for a minor who lost virion in one eye was reduced to a total of $2,963,322.91 for past damages alone in 2004 - or ultimately (18t $4,881,946.49 in 2023 dollars. 2004 WL 6069022 (Sup. Ct. N.Y. Feb. 6, 2004, aff'd 12 A. D.3d 208 2004)." Dep't (Abrams aff, par 33). In fact, the $2,963,322.91 sum reflected the present v;due of all damages, and the award to the minor for past pain and suffering was reduced to $1,000,000. Furthermore, counsel's Westlaw citation is to the February 6, 2004, judgment entered by the Bronx Supreme Court, and does not indicate the period of time corresponding to past pain and su:fering, or whether any physical pain was involved. Notably, if counsel had looked at the brief they s abmitted for their client in Sanchez, they would have observed that the incident occurred in 1994, more than 9 years before the trial, and their client suffered significant physical and psychological pain throug h that period and beyond: Plaintiff testified that he was struck [by a bungee cord] while waiting to use the zip line; Mr. Gaines "hit the brake", and plaintiff was struck in the right eye; he "fell to the ground pain" and to this day I remember the (679); he would not wish that kind of "pain or anybody"; he also saw blood. He stated, "I was down. I had my hand on my face. T he initial shock of the incident, I really didn't know what actually happened. Um, less han ten seconds later, though, my brain was hurting me. I don't know, and I had my hands up here and I looked at what happened, and um, I had blood on my hands and then my eye just - I can't even explain what was on with but it was and then I going it, um, hurting, truck" was directed to a (679-80). People tried to wipe the blood from plaintiffs eye, but were not successful (680). He was taken by ambulance to Northern Westchester Hospital, but because he was Mnly in terrible pain (681- 15, he was not treated until his mother could sign a consent; he was 82). Surgery was performed under general anesthesia to repair a tear duct and other injuries, but he did not know exactly what was done (682). He remembered the hon or of having tubing attached to his eye to prevent tearing. He was admitted for a week an:1 had stationary." to remain "pretty much His physician, Dr. Mooney, finally removed the suffering and $2,000,000 for future pain and suffering, indicates