SUPREME COURT: COUNTY OF CHAUTAUQUA
DANIEL F. SCALISE
and JACLIN J. SCALISE
vs Index No. H-4182
CHAUTAUQUA COUNTY AGRICULTURE
& FAIR ASSOCIATION; JOHN
RICHARDSON; AND J & J AMUSEMENTS
SEEGERT & ESTOFF, P.C.
(Joseph G. Krenitsky, Esq.
of Counsel) for Plaintiffs
O'SHEA, REYNOLDS & CUMMINGS
(Nelson E. Schule, Jr., Esq.
of Counsel) for Defendants
DECISION AND ORDER
Plaintiff moves to set aside the verdict and direct
judgment in favor of plaintiffs in an amount to be deemed
just and fair compensation, or, order a new trial on
grounds that the verdict was wholly and completely
inadequate and insufficient.
The standard of review to be applied by trial courts
to the damage aspect of a jury verdict is the standard of
"deviated materially from what would be reasonable
compensation." See PruntyvYMCAofLockport,Inc., 206
A.D.2d 911, 616 NYS2d 117 (4th Dept. 1994); Fitzgibbonsv
NewYorkStateUniversityConstructionFund, 177 AD2d 1033,
578 NYS 2d 317 (4th Dept. 1991).
The motion for a new trial on the grounds the verdict
was inadequate is granted, unless the defendant is willing
to pay and plaintiffs are willing to accept $15,000, plus
the medical expenses of $1,596.05 in settlement of all
The jury awarded nothing for future pain and suffering
in spite of the testimony of plaintiff's physician that
she would have continuing problems with her left foot and
in all probability would require future medical care and
treatment along the lines of prescribed medication,
cortisone injections and possibly the use of orthotics.
Defendant's examining physician testified that as of
November 1992, he observed plaintiff's left leg had
atrophied 1/2 inch due to her injury, and that her symptoms
would contribute to her atrophy, but that no further
medical care and treatment was indicated. While he felt
she had recovered from the injury, he did testify he did
not believe plaintiff was a "malingerer".
There was a question whether she sustained a fracture.
Radiologists did diagnose a fracture; the doctors thought
otherwise, but, there was no question that she sustained a
crushing type injury and that the foot required a cast for
over a month and her left leg, due to her symptoms, had
The fact that, except for some prescriptions and over
the counter medications, and Dr. Scholls over-the-counter
shoe inserts, plaintiff admitted she rejected cortisone and
professionally fitted orthotics, no doubt influenced the
jury, but, rejection of a steroid was not unreasonable; her
rejection of fitted orthotics was.
The signing, filing, and mailing of a copy by the
Court of this Decision and Order to all Counsel shall not
constitute notice of entry required by CPLR 2220. Counsel
are not relieved from the applicable provisions of that
section respecting notice of entry.
THIS IS THE DECISION AND ORDER OF THIS COURT.
Dated: February , 1996
Mayville, New York
Supreme Court Justice
To all Counsel:
Please take notice that a DECISION and ORDER of
which the within is a copy, was duly granted in the above
entitled action on the day of , 1996, and
filed by the Court in the office of the Clerk of the County
of Chautauqua on the same date.