Pianoforte v. JZI Servs. LLC

Pianoforte v JZI Servs. LLC

2024 NY Slip Op 33409(U)

September 27, 2024

Supreme Court, New York County

Docket Number: Index No. 156971/2018

Judge: Leticia M. Ramirez

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.

INDEX NO. 156971/2018

NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 09/27/2024

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK PART 29

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ROBIN PIANOFORTE

PLAINTIFF

vs INDEX# 156971/2018

JZI SERVICES LLC d/b/a SPA JOLIE and DECISION/ORDER

"SPA JOLIE" (AMENDED)

DEFENDANTS

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Defendant moves, pursuant to CPLR§ 4404(a), to set aside a jury verdict. At trial, the

jury found the defendant liable for negligently performing laser hair removal. After trial, the

jury awarded the plaintiff the sum of $160,000.00 for past pain and suffering with no award for

future pain and suffering. Defendant argues, inter alia, that based upon allegedly incorrect

evidentiary rulings, together with remarks made by plaintiffs counsel during summations, it is

entitled to set aside the jury verdict. Defendant also claims the award was against the weight of

the evidence and excessive, and therefore, defendant claims it is entitled to a new trial. Plaintiff

opposes, arguing, inter alia, the award was not excessive, nor against the weight of the evidence

and any remarks made by him during summations, were not improper, nor do they require a new

trial.

In brief, this was a 5 day long personal injury jury trial, wherein plaintiff alleged she

suffered burns during a laser hair removal treatment procedure. Plaintiff testified she

complained to the technician that the laser apparatus was too hot. The procedure resulted in

burns all over her arms and legs. Both parties had expert medical witnesses to testify to their

respective positions. Both medical experts ultimately testified the injuries on plaintiffs skin were

in fact burns. Defendant did not call as a witness the individual who plaintiff alleges caused the

injury. After the trial was completed, the jury deliberated for 2 hours and 30 minutes and

rendered a verdict which found defendant negligent. The jury decided that their negligence was

a substantial factor in bringing about the injury and awarded the plaintiff the sum of $160,000.00

for past pain and suffering. There was no award for future pain and suffering.

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In seeking to have the verdict set aside, defendant argues several statements made by

plaintiff's counsel during his closing arguments warrants vacatur of the jury verdict. Defendant

argues plaintiff's statement: "I submit to you, ladies, and gentlemen pain and again I hope this

never happens to you, pain is a window to hell" was impermissible, highly prejudicial, and

strictly forbidden. Defense counsel argues plaintiff counsel's additional statement, also made

during summations, "we've had discussions about what we think the case is worth", also

requires the court set aside the jury verdict as plaintiff's statement is improper, highly prejudicial

and grounds for a mistrial.

Defense counsel further argues this Court erred in allowing plaintiff to testify that she felt

"shocks going up and down her body". Counsel argues the use of the word, "shocks" was in

direct violation of the court decision on a motion in limine. The ruling on the motion required

plaintiff to abstain from providing any testimony concerning neurological complaints.

Plaintiffs expert was also precluded from testifying to any neurological injury as they were not

included in the Bill of Particulars. Counsel argues, the use of the term "shocks" by the plaintiff

violated the Court's ruling, was highly prejudicial, and a basis to set aside the jury verdict. The

defendant also seeks to have the jury verdict vacated based on the Court's failure to allow the

introduction into evidence, of an affidavit authored by the plaintiff on an unrelated Federal

matter.

Defense counsel also argues the jury verdict should be set aside as the award of

$160,000.00 for past pain and suffering was excessive. However, counseldoes not cite any past

jury verdict to illustrate the alleged excessiveness. Instead, counsel simply argues it is excessive

and against the weight of the evidence, with no support. Lastly, defendant requests, should the

Court fail to grant it's motion to vacate the jury verdict, the Court should order plaintiff to agree

to reduce the judgment substantially. Defendant, however, does not suggest what a "substantial"

amount would be.

In opposition, plaintiff alleges defendant's motion must be denied in its entirety as

defendant has failed to append a copy of the transcript to the motion. Plaintiff counsel also

opposes defendant's allegations it made improper reference to settlement negotiations.

Plaintiff alleges he did no such thing, but rather, the statement "we've had discussions

about what we think the case is worth" was in response to defendant counsel's remarks during

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summation. Defense counsel, during his summations, told the jury that plaintiffs counsel was

going to ask for a lot of money for these injuries, " maybe even as much as $150,000.00".

Plaintiffs counsel alleges defendant did this, all the while knowing plaintiffs counsel would be

seeking much more. Plaintiff argues counsel was using this defense tactic to lessen plaintiffs

right to request damages that were borne from the evidence. Plaintiff also argues the statement

made by him during summations, to wit: "I submit to you ladies and gentlemen, pain and again, I

hope this never happens to you, pain is a window to hell" was not improper, prejudicial nor a

basis to set aside the jury verdict.

In opposing defendant's allegation of allowing the plaintiff to testify to "shocks", which

was disallowed by the court's ruling on the motion in limine, plaintiff counsel argues,

defendant's remedy, if it had an issue with the decision, was to move for reargument, and not

raise the issue in a motion pursuant to CPLR§ 4404.

Plaintiff argues the verdict is not excessive, nor against the weight of the evidence and in

support, cites a case where a plaintiff received much higher damages for the same injury. Lastly,

plaintiffs counsel alleges defense counsel is simply attempting to re-litigate the entire trial.

In reply, defendant argues plaintiffs opposition concerning its failure to attach copies of

the transcript is withoutmerit since the court is already in possession of the transcripts. The

remainder of defendant's reply is simply a repeated recitation of the issues raised in the moving

papers.

It is well settled that a jury verdict shall not be set aside and shall stand unless the court

concludes that the jury could not have reached the verdict on any fair interpretation of the

evidence. Delgado v. Board ofEducation of Union Free School District, 48 N.Y.2d 643 (1979).

In fact, a jury verdict should not be set aside unless the court concludes that the evidence

presented at trial so preponderates in favor of the moving party that the jury could not have

reached its verdict on any fair interpretation of the evidence. Grassi v. Ulrich, 87 N.Y.2d 954

( 1996). Moreover, vacatur of a verdict based on a claim of insufficiency as a matter of law

requires that the trial court determine that the jury verdict is "utterly irrational Kil/on v. Parrotta,

28 NY3d 101, 108 [2016], quoting, Campbell v. City of Elmira, 84 NY2d 505 [1994].

A determination that a verdict was based on legally insufficient evidence "requires a

finding that 'there is simply no valid line of reasoning and permissible inferences which could

possibly lead rational men to the conclusion reached by the jury on the basis of the evidence

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presented at trial' Johnson v. Oval Pharmacy, 165 A.D.2d 587, 592, 569 N.Y.S.2d 49 [1991], Iv.

denied 78 N.Y.2d 859, 575 N.Y.S.2d 455,580 N.E.2d 1058 [1991], quoting, Cohen v. Hallmark

Cards, 45 N.Y.2d 493,499,410 N.Y.S.2d 282,382 N.E.2d 1145 [1978]). A verdict should only

be set aside as against the weight of the evidence where it is palpably wrong and

the jury could not have reached its conclusion upon any fair interpretation of the evidence. See,

Bernstein v. Red Apple Supermarkets, 227 A.D.2d 264,265,642 N.Y.S.2d 303 [1996], lv.

dismissed 89 N.Y.2d 961, 655 N.Y.S.2d 881,678 N.E.2d 493 [1997], citing. Cornier v.

Spagna, 101 A.D.2d 141,149,475 N.Y.S.2d 7 [1984] ). These standards of review result from

the deference owed to the fact-finding powers of a jury within our justice system.

Based upon a review of the papers submitted and the relevant case law, the Court finds

plaintiff's commentary during summation, "I submit to you, ladies, and gentlemen-pain and

again I hope this never happens to you, pain is a window to hell" not improper, nor highly

prejudicial and clearly not a basis to set aside the verdict. Defense counsel's reliance on the cases

cited in its moving papers, do not support its contentions. In Boshnakov v Bd. of Education, 277

AD2d 996. [4th Dept, 2000], the court rejected the allegation that statements made by counsel

during summations were unduly prejudicial. The court concluded the so-called "bag of gold"

remarks was fair comment in response to remarks by defense counsel. The court held that

counsel did not tell jurors, either directly or by implication, that they should put themselves in

plaintiffs place and render such verdict as they would wish to receive were they in plaintiffs

position. Defense counsel also relies on Liosi v Vacarro, 35 AD2d 790 [1st Dept 1970] and

Wintraub v Zabotinsky, 19 AD2d 906 [ 2nd Dept 1963]. Neither of these cases supports the

contention of improper statements made by counsel during summations.

In Liosi, the Court, in its jury charge, charged the jurors to ask, "each of himself, what he

would want or what he would take for the discomfort, pain and suffering experienced" In that

case, the Appellate Division found this was clearly error and relied on Weintraub supra. which

stands for the proposition that this type of directive by the court is highly prejudicial. In

Weintraub, it was once again the court who charged the jury to compensate the plaintiff for his

injury "in such amounts as you jurors feel you, yourselves, would like to be compensated if the

conditions happened to you the same as happened to this man". Here, the appeals court once

again reversed, finding the charge to be reversible error. In the instant matter, the court never

included the language in its charge, therefore, defense counsel's reliance on both Liosi and

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Weintraub is woefully misplaced. Like Boshnakov, this Court finds remarks made by plaintiffs

counsel were not unduly prejudicial and do not warrant a new trial. See also, Young v Tops Mkts,

283 AD2d 923 [4th Dept, 2001], where the Court found counsel's statement made during

summation, "may seem like a lot of money, but I don't know of anybody [who] would take that

money and say give me what ***[plaintiff] has gone through and what he will go through", not

so egregious as to'warrant setting aside the verdict for that reason.

Defense counsel's allegation concerning the statement made by plaintiffs counsel during

summation, "we've had.discussions about what we think the case is worth" was not, as defense

counsel alleges, in violation of CPLR§ 4547. That statute prohibits, inter alia, mention of

settlement negotiations, compromise of an action, or offers to settle. In addition, the statute

prohibits evidence of any conduct or statement made during compromise negotiations.

Plaintiffs statement did none of these things. Moreover, when the comment was made, defense

counsel failed to raise an objection and chose instead to interrupt counsel's summation by

blurting out to the jury "I never had a discussion". In any event, plaintiffs statement was not

improper nor prejudicial and does not serve as a basis for vacatur of the jury verdict.

Defense counsel's allegation, that the Court failed to strike that portion of plaintiffs

testimony, that she felt "shocks" when this Court had specifically precluded any testimony

concerning neurological damage pursuant to a motion in limine, was harmless error. There was

no further mention of any neurological issues, nor evidence permitted as to claims of

neurological injury. This Court finds that use of the word, "shocks" without more, did not

prejudice defendant. See. CPLR 2002.

In addition, counsel's allegation, that the Court did not admit into evidence an unswom

affidavit, which was in support of a matter plaintiff had commenced in Federal Court, is without

merit as the Court marked it as a court exhibit, and allowed defendant to cross-examine the

plaintiff, at great length, as to the complaints made by plaintiff in the federal matter. Defendant

used the document to attempt to impeach plaintiffs credibility, so defendant cannot now say he

was prejudiced. Similarly, defendant's allegation, that the court refused to admit into evidence a

document evidencing plaintiffs informed consent was ameliorated by defense counsel's motion

to strike the claim of lack of informed consent, which was granted without opposition. Moreover,

the document was introduced for the first time, after plaintiffs counsel had rested, which goes

against the tenets of good faith.

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Lastly, when moving to vacate an award as excessive, it is common practice for counsel

to submit cases, with similar injuries, which resulted in lower awards to support the claim of

excessiveness. Here, defendant did no such thing. Defendant simply argues it is excessive

without any basis, comparison, or proof. Defendant argues plaintiff is not entitled to anything;

however, he fails to substantiate the basis for such argument. Counsel's allegation, that plaintiff

only missed two days of work, is irrelevant, as there was no claim for lost earnings. To counter

the argument that the verdict was excessive, plaintiffs counsel relies on Salas v Bellair Ctr., Inc,

185 AD3d 746 [2nd Dept., 2020], a case very similar to the instant matter, where plaintiff ·

suffered burns, discoloration, and discomfort after laser treatment. The jury awarded in that

matter $255,525.00. The Court holding that "affording the plaintiff the benefit of every

inference that may properly be found from the evidence presented and considering the evidence

in a light most favorable to her, see, Morgan-Word v New York City Dept. of Educ., 161 AD3d at

1068), the jury verdict finding that the defendant negligently performed the cosmetic laser

treatment at issue, and that its negligence proximately caused the plaintiffs injuries, was not

utterly irrational." Here, the Court agrees.

In the instant matter, the jury had a basis to award the plaintiff $160,000.00 for past pain

and suffering. They heard extensive testimony concerning plaintiffs procedure and the ensuing

pain she experienced. Concerning her reaction during her procedure, she testified about

addressing the technician, "It feels like you're burning my skin, and it feels too hot" "It's

hurting" (pg. 62 lines 12-14). She testified she spoke to defendant's expert " .... I mentioned to

Dr. Diktaban that she had given me this silver cream; he knew right away what the term silver

cream means. Silver is short for Silvadene, and it treats bum victims" (pg. 72, lines 22-25). She

testified as to how the pain affected her, "Sleeping was difficult because the bums all over the

legs, so in a laying position, it's very hard to lay on top of bums and sleep. So, I didn't sleep for

weeks at a time .... ) (pg. lines 5-7). She testified how the injury affected her life "I'm very

outdoors, so I enjoy running .. .I like to walk the Highline. I like to play tennis and these are all

outdoor events when you're in the sun and you do wear shorts for the majority of the year when

you are running or playing tennis, so I entirely stopped doing everything that I loved .... .I didn't

want to expose my legs further to any sort of light, do any further harm than what had already

been done to my body" (pgs. 81-82 lines 20-25 and 1-3). When plaintiff was asked whether the

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burns were painful after the treatment, plaintiff testified they were "excruciatingly painful. I

couldn't sleep at night because it was so uncomfortable to sleep ... " (pg. 400-401 lines 24-2).

There was testimony elicited from both plaintiff and defendant's experts agreeing that the

resulting marks over the entirety of the treated area were in fact burns. Plaintiffs expert, Dr.

Cohen, testified the injuries plaintiff suffered is a bum (pg. 125 line 22-24) he describes

plaintiffs injuries as "red welts" upon review of photographs of plaintiffs injuries, he testified,

" ....... But she has these large, red welts. She has multiple areas that are scabs or crusting and

multiple blister's all over those legs over there" (pg. 127 lines 16-18) When asked what was

inside the red welts, Dr Cohen stated "so there's fluid, different tissues cells, there might be

blood in there. It's all part of healing. When you get a bum, .... you get swelling and fluid, and

it goes through a healing process basically and each one is an individual burn" (pg. 129 line 8-

12). He further opined, "This happens to be-in my opinion, to be a second-degree bum .... " (pg.

131 line 23). When asked whether he had an opinion, to a reasonable degree of medical certainty

whether the injuries that were found during his examination, and contained in the records are

causally connected to the laser hair removal treatment in 201 7, he answered yes, and continued

with "My opinion within a reasonable degree of medical certainty, is that the laser that was done

in July 2017 caused the burns on the skin, on the arms the torso, the legs ... " ( pg. 144 lines 9-

12).

Defendant's own expert Dr. Diktaban, who testified that he did not agree that burns were

"second degree" testified on direct examination that the injuries plaintiff suffered were first

degree bums. (pg. 308 lines 12-17). During cross-examination however, when asked whether

the burns were causally connected to the laser hair removal treatment of July 6, 2017, the defense

expert answered "yes" (pg. 345 line 18-22). When counsel for plaintiff describes plaintiffs

complaints and asks, "does oozing, pink coloration, raised skin eruptions, an intense swelling

involving yellowish fluid sound like frrst degree burns to you?" Dr. Diktaban answers: "that

description, by itself is more than a first-degree bum" when counsel asks "Pink and red burns

eventually become hyperpigmented, right? That's what she told you? The doctor answered

"yes" and when counsel concluded the inquiry with "And that's what the evidence shows,

doesn't it?" Dr. Diktaban answers "it does" (pg. 376-377 lines 19-11). Dr. Diktaban also

testified that he told defense counsel that plaintiffs injuries were bums (pg. 357 lines 2-7).

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Over the course of 5 days, the jury heard medical testimony, plaintiffs testimony, the

testimony of plaintiffs mother, testimony from the owner of the Spa, and testimony from the

receptionist. However, the jurors never heard from the individual who performed the laser hair

removal treatment. Furthermore, the jury saw graphic photos of the injury. Whether they

accepted all or rejected some of the testimony, this Court finds there was sufficient basis for the

jury to find for plaintiff. They heard the facts, and decided plaintiff was entitled to

compensation. Based on the totality of the evidence and testimony presented, this Court finds

the jury award was not excessive, nor against the weight of the evidence. The jury had a rational

basis to award such an amount and this Court will not upset the jury's verdict.

Accordingly, the motion to set aside the jury verdict is denied in its entirety. Defendant's

remaining contentions are found to be without merit.

This constitutes the Decision and Order of this Court.

Dated: September 27, 2024

Justice of the Supreme Court

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