SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

212 

CA 16-01264 

PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ. 

 

THERESA A. LAMPHRON-READ, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

DAVIS MONTGOMERY AND DESMOND J. MONTGOMERY, 

DEFENDANTS-APPELLANTS. 

 

LAW OFFICE OF DANIEL R. ARCHILLA, BUFFALO (JEFFREY SENDZIAK OF

COUNSEL), FOR DEFENDANTS-APPELLANTS.

CELLINO & BARNES, P.C., BUFFALO (ELLEN B. STURM OF COUNSEL), FOR

PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Monroe County (Thomas

A. Stander, J.), entered March 21, 2016. The order granted

plaintiff’s motion to set aside the verdict and for a new trial on

damages, unless defendants agree to stipulate to increase the award

for past pain and suffering to $65,000, and agree to stipulate to an

award of $65,000 for future pain and suffering. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action to recover damages

for injuries that she sustained when her motor vehicle was struck

head-on by a vehicle owned by defendant Davis Montgomery and driven by

defendant Desmond J. Montgomery. The issue of liability was resolved

by Supreme Court in favor of plaintiff, and a jury trial on the issue

of damages was conducted. The jury awarded plaintiff $25,000 for past

pain and suffering, but made no award for future pain and suffering. 

We conclude that the court properly granted plaintiff’s motion

pursuant to CPLR 4404 (a) to set aside the verdict with respect to

damages as against the weight of the evidence. Plaintiff sustained

fractures of the transverse processes of her thoracic spine at

vertebrae T-5 to T-9, an L-1 left-sided transverse process fracture of

her lumbar spine, and a C-4 vertebral fracture of her cervical spine. 

It is undisputed that plaintiff was in significant pain as a result of

her injuries, was hospitalized for a week, and was unable to perform

most daily activities without assistance for a couple weeks after her

return home (see e.g. Simmons v Dendis Constr., 270 AD2d 919, 920). 

Plaintiff was required to wear a cervical collar brace and a ThoracicLumbar-Sacral Orthosis (TLSO) for three months (see e.g. Stewart v

Manhattan & Bronx Surface Tr. Operating Auth., 60 AD3d 445, 446; Pares
-2- 212 

CA 16-01264 

v LaPrade [appeal No. 2], 266 AD2d 852, 853), and those devices

immobilized plaintiff “[a]s much as [one could] be without any type of

surgery” (see e.g. Bouzas v Kosher Deluxe Rest., 83 AD3d 538, 538). 

Plaintiff was unable to walk, sit, or stand for prolonged periods

without aggravating her back pain (see e.g. Deyo v Laidlaw Tr., 285

AD2d 853, 854; Diglio v Gray Dorchester Assoc., 255 AD2d 911, 912;

Wroblewski v National Fuel Gas Distrib. Corp., 247 AD2d 917, 917). 

Even routine actions, such as carrying groceries or mowing the lawn,

caused her pain and required her to stop and rest (see e.g.

Wroblewski, 247 AD2d at 917). Plaintiff’s ability to engage in home

improvement projects, recreational activities, and long-distance

visits with her family has been curtailed (see e.g. Barrow v Dubois,

82 AD3d 1685, 1687; Palmer v CSX Transp., Inc. [appeal No. 2], 68 AD3d

1626, 1627; Simmons, 270 AD2d at 920; Diglio, 255 AD2d at 912), and

her pain has also interfered with her ability to sleep (see e.g.

Barrow, 82 AD3d at 1687).

Plaintiff’s independent medical examiner, a board certified

orthopedic surgeon, testified that plaintiff’s neck and lower back

pain had subsided and no longer required treatment. It was

uncontroverted, however, that plaintiff’s thoracic spine fractures

caused permanent paraspinal muscular injuries, resulting in chronic

activity-related back pain for which there was no available remedy

(see e.g. Simmons, 270 AD2d at 920; Scott v Yurkewecz, 234 AD2d 673,

675; see generally Inzinna v Brinker Rest. Corp. [appeal No. 2], 302

AD2d 967, 968). The orthopedic surgeon also testified that

plaintiff’s subjective descriptions of pain were consistent with her

injuries (see e.g. Wroblewski, 247 AD2d at 918), and that the type of

compressive force necessary to cause her multiple fractures had to

have been “significant.” We note that, although plaintiff was

examined by a physician chosen by the defense, defendants did not

present the testimony of that physician or any other medical expert

(see e.g. Beckwith v Rute, 235 AD2d 892, 894).

In light of the uncontroverted evidence that plaintiff suffered

substantial pain from seven vertebral fractures, was temporarily

immobilized, has continued to suffer pain from daily activities, and

has been limited in her enjoyment of recreational activities, we

conclude that the award of $25,000 for plaintiff’s past pain and

suffering “is inadequate and could not have been reached upon any fair

interpretation of the evidence” (Inzinna, 302 AD2d at 968). Moreover,

given the uncontroverted medical testimony that plaintiff continues to

suffer from permanent and chronic activity-related pain that is

causally related to this motor vehicle accident, the failure to award

damages for plaintiff’s future pain and suffering is also against the

weight of the evidence (see Inzinna, 302 AD2d at 968; Scott, 234 AD2d

at 675; see generally Lolik v Big V Supermarkets, 86 NY2d 744, 746).

We further conclude that the court properly determined in the

alternative that the award of $25,000 for plaintiff’s past pain and

suffering and the failure to award any damages for future pain and

suffering deviates materially from what would be reasonable

compensation (see Barrow, 82 AD3d at 1686-1687; Grigoli v Passantino, 
-3- 212 

CA 16-01264 

15 AD3d 349, 350; Trala v Egloff, 298 AD2d 878, 880). 

Entered: March 24, 2017 Frances E. Cafarell

Clerk of the Court