SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

278 

CA 10-00367 

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ. 

 

DANIEL C. OAKES AND LISA M. OAKES, 

PLAINTIFFS-RESPONDENTS,

V MEMORANDUM AND ORDER

RAJNIKANT PATEL, M.D., SATISH K. MONGIA, M.D., 

AND KALEIDA HEALTH, AS SUCCESSOR IN INTEREST 

TO MILLARD FILLMORE HOSPITALS, DOING BUSINESS 

AS MILLARD FILLMORE SUBURBAN HOSPITAL, 

DEFENDANTS-APPELLANTS. 

 

DAMON MOREY LLP, BUFFALO (AMY ARCHER FLAHERTY OF COUNSEL), FOR

DEFENDANT-APPELLANT KALEIDA HEALTH, AS SUCCESSOR IN INTEREST TO

MILLARD FILLMORE HOSPITALS, DOING BUSINESS AS MILLARD FILLMORE

SUBURBAN HOSPITAL. 

ROACH, BROWN, MCCARTHY & GRUBER, P.C., BUFFALO (GREGORY T. MILLER OF

COUNSEL), FOR DEFENDANT-APPELLANT SATISH K. MONGIA, M.D. 

BROWN & TARANTINO, LLC, BUFFALO (ANN M. CAMPBELL OF COUNSEL), FOR

DEFENDANT-APPELLANT RAJNIKANT PATEL, M.D. 

LAW OFFICE OF FRANCIS M. LETRO, BUFFALO (RONALD J. WRIGHT OF COUNSEL),

FOR PLAINTIFFS-RESPONDENTS. 

 

Appeals from a judgment of the Supreme Court, Erie County

(Timothy J. Drury, J.), entered December 23, 2009 in a medical

malpractice action. The judgment awarded plaintiffs money damages

upon a jury verdict. 

It is hereby ORDERED that the judgment so appealed from is

affirmed without costs. 

Memorandum: Plaintiffs commenced this medical malpractice action

seeking damages for the failure of defendants to diagnose and treat

Daniel C. Oakes (plaintiff) for a sentinel bleed from a cerebral

aneurysm. Following the first trial, the jury returned a verdict

finding, inter alia, that defendants, Rajnikant Patel, M.D., Satish K.

Mongia, M.D., and Kaleida Health, as successor in interest to Millard

Fillmore Hospitals, doing business as Millard Fillmore Suburban

Hospital (Kaleida), were negligent and also that Kaleida was

vicariously liable for the negligence of third-party defendant Dent

Neurologic Institute (Dent). The jury apportioned fault among

defendants and awarded plaintiffs damages in various amounts
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including, insofar as relevant to this appeal, $1 million to plaintiff

for past pain and suffering and $60,000 to plaintiff wife for past

loss of services, as well as future damages covering 18 years in the

amount of $1 million for plaintiff’s future pain and suffering, $1.8

million for plaintiff’s future supportive living expenses and $150,000

for plaintiff wife’s future loss of services. 

Plaintiffs moved to set aside the verdict on damages only based

on, inter alia, the ground that certain elements of the award were

inadequate. Supreme Court, inter alia, granted the post-trial motion

in part and set aside the verdict with respect to damages for past and

future pain and suffering, past and future loss of services and future

supportive living expenses, and the court ordered a new trial on those

elements of damages unless defendants stipulated to an award of $5

million for past pain and suffering and $1.5 million for past loss of

services, as well as an award covering 18 years in the amount of $5

million for future pain and suffering, $2 million for future loss of

services and $3.9 million for future supportive living expenses. 

Also following the jury verdict, Kaleida moved for, inter alia,

leave to amend its answer to the amended complaint to include an

affirmative defense of release and an affirmative defense pursuant to

General Obligations Law § 15-108. According to Kaleida, plaintiffs

each executed and filed a proof of claim in a liquidation proceeding

in March 2003 against Kaleida’s insurer, PHICO Insurance Company

(PHICO), that included a release of claims against any PHICO insured.

Kaleida filed its own proof of claim in that proceeding in December

2007 with respect to this action against it and, although the deadline

to file proofs of claim in the liquidation proceeding was April 1,

2003, Kaleida averred that it had been advised by PHICO that its proof

of claim was timely. Kaleida alleged that it did not receive copies

of plaintiffs’ proofs of claim until May 2008, after the conclusion of

the first trial, and that the proposed amendments to its answer would

not prejudice plaintiffs. The court denied the motion. 

Defendants subsequently refused to stipulate to the court’s

increased damages, and a new trial on the issue of those damages was

conducted. Following the second trial, the jury returned a verdict

awarding plaintiff $5.6 million for past pain and suffering and

awarding plaintiff wife $1.5 million for past loss of services and

society. The jury also awarded future damages covering 17 years in

the amount of $4,720,000 for plaintiff’s future custodial care and

supportive services, $4 million for plaintiff’s future pain and

suffering, and $150,000 for plaintiff wife’s future loss of household

services and $750,000 for her future loss of services and society. 

Defendants thereafter each moved, inter alia, to set aside the verdict

on the ground that the award for past and future pain and suffering,

past and future loss of services and society and future custodial home

care was excessive. Kaleida and Dr. Mongia also contended that they

had been prejudiced when the court erred in admitting certain evidence

and precluding other evidence, and when plaintiffs’ counsel and the

court engaged in inappropriate conduct. The court denied those parts

of defendants’ respective motions to set aside the verdict, and this

appeal ensued.
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We conclude that the court properly denied that part of Kaleida’s

motion for leave to amend its answer to the amended complaint to

include an affirmative defense of release and an affirmative defense

pursuant to General Obligations Law § 15-108. The proofs of claim

executed and filed by plaintiffs in the liquidation proceeding with

respect to PHICO contained releases with respect to “any and all

claims [that] have been or could be made against [a] PHICO insured

based on or arising out of the facts supporting the . . . [p]roof of

[c]laim up to the amount of the applicable policy limits and subject

to coverage being accepted by the Liquidator . . . .” Further, the

notice received by plaintiffs in connection with their proofs of claim

states that, “[i]f coverage is avoided by the Liquidator, [the]

release[s] become[] null and void.” Because Kaleida’s liability for

the negligence of Dent is included in the claims specified to PHICO

and because PHICO’s liquidators avoided, or announced that they would

avoid, coverage of that portion of the claim, plaintiffs’ releases

were rendered null and void.

We further conclude that defendants were not denied a fair trial

based on the alleged inappropriate conduct of plaintiffs’ counsel or

the court. Any improper remarks by plaintiffs’ counsel did not deny

defendants a fair trial because “ ‘they did not constitute a pattern

of behavior designed to divert the attention of the jurors from the

issues at hand’ ” (Kmiotek v Chaba, 60 AD3d 1295, 1296). Furthermore,

although certain actions and statements of the court may have been

somewhat intemperate or ill-advised, we conclude that, “overall[,] the

conduct complained of was not so egregious as to have deprived the

[defendants] of a fair trial” (Malaty v North Ark. Wholesale Co., 305

AD2d 556; see Sheinkerman v 3111 Ocean Parkway Assoc., 259 AD2d 480,

lv dismissed in part and denied in part 93 NY2d 956).

We further conclude that the jury’s verdict on liability in the

first trial is not against the weight of the evidence (see generally

Cohen v Hallmark Cards, Inc., 45 NY2d 493, 499), and that the various

elements of damages awarded in the second trial do not deviate

materially from what would be reasonable compensation (see CPLR 5501

[c]). 

Finally, we note our agreement with plaintiffs that the court

properly granted those parts of their post-trial motion in the first

trial to set aside certain elements of the award of damages as

inadequate. With respect to the issue of the additur as raised by the

dissent (Peradotto, J.), however, we conclude that, because defendants

did not challenge the court’s additur before, during or after the

second trial, and did not raise that issue on appeal, no such issue is

properly before us. Indeed, the only contentions raised by defendants

on appeal in the “argument” sections of their briefs regarding damages

are that the court erred in granting in part plaintiffs’ motion to set

aside the jury verdict in the first trial on the ground that certain

portions of the damages award were inadequate, without addressing the

amount of the court’s additur with respect thereto, and that the court

erred in denying those parts of their motions seeking to set aside the

second verdict on the ground that certain portions of the damages

award were excessive. We cannot conclude that, by challenging the
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court’s order setting aside the first verdict in part, defendants

thereby implicitly challenged the amount of the court’s additur (see

generally Gerbino v Tinseltown USA, 13 AD3d 1068, 1072). Nor can we

agree with our dissenting colleague that references to the amounts of

the court’s additur in the factual recitation of defendants’ briefs on

appeal constitute challenges to the court’s additur. In any event,

even assuming, arguendo, that such challenges are raised in the

briefs, they are raised for the first time on appeal and thus are not

properly before us (see Ciesinski v Town of Aurora, 202 AD2d 984,

985). We have considered defendants’ remaining contentions with

respect to both trials and conclude that they are without merit. 

LINDLEY, SCONIERS and MARTOCHE, JJ., concur; SMITH, J.P., dissents in

part and votes to modify in accordance with the following Memorandum: 

I respectfully dissent in part, because I cannot agree with the

majority that specified elements of the award of damages following the

second trial are proper. Initially, I agree with the majority that

the issue of the additur, which Justice Peradotto in her dissent

asserts must be addressed before we review the excessiveness of the

second verdict, is not before us. I also agree with the remainder of

the majority’s determination, including that, contrary to defendants’

contention, Supreme Court properly granted those parts of plaintiffs’

post-trial motion to set aside the verdict from the first trial with

respect to damages for past and future pain and suffering, past and

future loss of services and future supportive living expenses on the

ground that the award for those elements of damages “deviates

materially from what would be reasonable compensation” (CPLR 5501

[c]).

I agree with defendants, however, that the award after the second

trial with respect to damages for past and future pain and suffering,

past and future loss of services and future custodial care and

supportive services also “deviates materially from what would be

reasonable compensation” (id.). Although plaintiff Daniel C. Oakes

sustained severe and life-changing injuries, in my view, an award of

$2 million for past pain and suffering, $3.5 million for future pain

and suffering, $200,000 for past loss of services, $300,000 for future

loss of services, and $3 million for future custodial care and

supportive services, with all future awards covering 17 years, is the

maximum amount that the jury could have awarded as a matter of law

based on the evidence at the second trial (see generally Angamarca v

New York City Partnership Hous. Dev. Fund, Inc., ___ AD3d ___ [June

21, 2011]; Coque v Wildflower Estates Devs., Inc., 58 AD3d 44, 56;

Paek v City of New York, 28 AD3d 207, 208, lv denied 8 NY3d 805;

Sawtelle v Southside Hosp., 305 AD2d 659, 660). Therefore, I would

modify the judgment by vacating the award with respect to damages for

past and future pain and suffering, past and future loss of services

and future custodial care and supportive services and grant a new

trial on those issues unless plaintiffs stipulate to a reduction of

the verdict with respect to those elements of damages as indicated.

PERADOTTO, J., dissents and votes to modify in accordance with the

following Memorandum: I respectfully dissent because, in my view, the

majority’s decision improperly fails to address the issue of whether
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CA 10-00367 

the court’s additur after setting aside the first verdict was

appropriate. In my view, any issues concerning the excessiveness of

the second verdict should not be addressed unless and until all issues

relative to the first verdict are resolved.

As the majority states, plaintiffs commenced this medical

malpractice action seeking damages for the failure of defendants to

diagnose and treat Daniel C. Oakes (plaintiff) for a cerebral

aneurysm. Following the first trial, the jury found that defendants

Rajnikant Patel, M.D., Satish K. Mongia, M.D. and Kaleida Health, as

successor in interest to Millard Fillmore Hospitals, doing business as

Millard Fillmore Suburban Hospital (Kaleida), were negligent and

awarded damages in the amount of $5,123,500. As relevant to this

appeal, the jury awarded plaintiff $1 million for past pain and

suffering, $1 million for future pain and suffering, and $1.8 million

for future supportive living expenses, and awarded plaintiff wife

$60,000 for past loss of services and $150,000 for future loss of

services. The future damages were awarded to cover a period of 18

years. Plaintiffs moved to set aside the verdict on damages only

based on, inter alia, the ground that certain parts of the award were

inadequate. The court determined that the award for past and future

pain and suffering, past and future loss of services and future

supportive living expenses deviated materially from what would be

reasonable compensation. The court therefore set aside the jury

verdict with respect to those categories of damages and ordered a new

trial unless defendants stipulated to increase the award to $5 million

for past pain and suffering, $5 million for future pain and suffering,

$1.5 million for past loss of services, $2 million for future loss of

services, and $3.9 million for future supportive living costs, with

all future damages awarded to cover a period of 18 years. With that

additur, the verdict would have been increased from $5,123,500 to

$18,513,500. Defendants rejected the additur and proceeded to a

second trial.

On appeal, defendants contend that, inter alia, the court erred

in setting aside certain parts of the verdict from the first trial. 

The order setting aside the first verdict and granting a new trial

unless defendants stipulated to an additur of $13.4 million is, of

course, brought up for review on this appeal from the judgment entered

after the second trial (see CPLR 5501 [a] [1]). The majority,

however, does not address all of defendants’ contentions with respect

to the verdict after the first trial. Instead, the majority proceeds

directly to the claims concerning the verdict after the second trial,

concluding that the damages awarded in the second trial are not

excessive. That is error. Rather, we must address the propriety of

the court’s order setting aside parts of the verdict following the

first trial and the appropriateness of the court’s additur before

addressing any issues raised with respect to the second trial (see

generally Sherry v North Colonie Cent. School Dist., 39 AD3d 986;

Zeigler v Neely, 220 AD2d 345; Libman v McKnight, 204 AD2d 856, lv

denied 84 NY2d 812).

In my view, the court properly set aside the award for past and

future pain and suffering, past and future loss of services and future
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CA 10-00367 

supportive living expenses inasmuch as the award with respect to those

categories of damages deviated materially from what would be

reasonable compensation (see CPLR 4404 [a]). I conclude, however,

that the court’s additur with respect to the noneconomic damages was

excessive (see generally Perlin v King, 36 AD3d 495; Rivera v Lincoln

Ctr. for Performing Arts, Inc., 16 AD3d 274; Carlos v W.H.P. 19, 301

AD2d 423), inasmuch as the amounts set by the court did not represent

“the minimum amount[s] that the jury could have found as a matter of

law based on the evidence at trial” (Camacho v Rochester City School

Dist., 20 AD3d 916; see Kmiotek v Chaba, 60 AD3d 1295, 1297;

Orlikowski v Cornerstone Community Fed. Credit Union, 55 AD3d 1245,

1247, lv dismissed 11 NY3d 915; see generally Siegel, NY Prac § 407,

at 689 [4th ed]). That is the applicable standard because “the amount

of damages to be awarded is primarily a question of fact [and] . . .

considerable deference should be accorded to the interpretation of the

evidence by the jury” (Marshall v Lomedico, 292 AD2d 669, 670

[internal quotation marks omitted]). Further, the successful

litigants are “entitled to the benefits of a favorable jury verdict”

(Keyser v KB Toys, Inc., 82 AD3d 713, 714; see McDonald v 450 W. Side

Partners, LLC, 70 AD3d 490, 491-492). In the context of plaintiffs’

motion to set aside the damages award as inadequate, it is the

defendants who are entitled to that benefit. In my view, $5 million

each for past and future pain and suffering and $3.5 million total for

past and future loss of services are simply not “the minimum amounts

the jury could have awarded as a matter of law based on the evidence

at trial” (Kmiotek, 60 AD3d at 1297; see generally Doviak v Lowe’s

Home Ctrs., Inc., 63 AD3d 1348). Defendants therefore were deprived

of the opportunity to stipulate to an appropriate additur with respect

to the award for past and future pain and suffering and past and

future loss of services, and that error is not cured by a second trial

on those categories of damages. Indeed, this is not a case in which

defendants made the strategic decision not to accept an appropriate

additur and to proceed at their peril. Thus, defendants should be

afforded the opportunity to stipulate to a proper additur in the

context of this appeal (see generally Perlin, 36 AD3d at 495; Rivera,

16 AD3d 274; Carlos, 301 AD2d 423). I would therefore modify the

judgment accordingly.

The majority concludes that the additur issue is not properly

before us because defendants “did not challenge the court’s additur

before, during or after the second trial, and did not raise that issue

on appeal.” I disagree. In opposition to plaintiffs’ motion to set

aside the verdict on damages only after the first trial, defendants

contended that the verdict should stand because the award did not

deviate materially from what would be reasonable compensation. That

contention necessarily encompasses the argument that an additur in any

amount would be inappropriate. When the court granted plaintiffs’

motion in part, set aside the verdict with respect to certain elements

of damages and ordered a new trial on those elements unless defendants

stipulated to an additur of more than $13 million, defendants rejected

the proposed additur and proceeded to a second trial. I cannot agree

with the majority that, in addition to opposing plaintiffs’ motion and

rejecting the proposed additur, defendants were somehow required to

further “challenge” the amount of the additur in order to preserve the
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issue for our review. Throughout their briefs on appeal, defendants

assert not only that the court erred in setting aside the verdict

after the first trial, but they also contend that the court’s additur

was excessive. Kaleida, for example, states in its brief that it

“declined to stipulate to the inordinate additur,” noting that the

court “ordered a five-fold increase in [plaintiff]’s award for pain

and suffering, more than doubled [plaintiff]’s award for supportive

living expenses, and increased [plaintiff wife]’s award for loss of

consortium by a factor of more than 15.” Dr. Mongia similarly notes

in his brief that “[t]he trial court’s additur was more than four

times the amount awarded by the jury as to the particular [elements]

of damage[s] it felt to be inadequate.” I thus conclude that the

issue whether the additur was excessive is properly preserved for our

review.

I take no position with respect to the majority’s determination

that the various elements of damages awarded in the second trial do

not deviate materially from what would be reasonable compensation

because, in my view, that issue should not be reached until all issues

with respect to the first trial have been resolved. I also take no

position with respect to defendants’ contention that the court erred

in precluding the admission of evidence relative to medical causation

in the second trial, a contention that the majority does not address.

 

Entered: August 19, 2011 Patricia L. Morgan

Clerk of the Court