February 24, 2025
Often, lawyers and claims-adjusters will resolve cases based on an informal pricing scheme that naturally develops in the hallways of courthouses or at mediation tables. The primary focus of these negotiations seems to be “verdict value,” or a sense of what juries are doing in a particular venue. Verdict value is undoubtedly relevant, but perhaps it is overused as a barometer for damages in New York. New York, unlike most other jurisdictions, gives courts a meaningful ability to alter damages awards. This process can be used as a tool by plaintiff’s to maximize settlements beyond the amount that cases “usually settle for.”
“The amount of a damage award for personal injuries is a question of fact for the jury, and ‘may be set aside only when it deviates materially from what would be reasonable compensation’” (Ciuffo v Mowery Const., Inc., 107 AD3d 1195 [3d Dept 2013]; quoting Vogel v Cichy, 53 AD3d 877, 878 [3d Dept 2008]; see CPLR 5501[c]). As the amount of an award for pain and suffering is a subjective determination that cannot be precisely quantified, whether there is a material deviation is determined by examining comparable cases (see Taveras v Vega, 119 AD3d 853 [2d Dept 2014]). To determine whether cases are comparable, courts will look at certain factors, including the nature and type of injury, severity of subjective pain, permanency of the injury, age of the plaintiff, prior health status, need for future surgery, ability to return to work, and impact on daily living (see Donlon v City of New York, 284 AD2d 13, 19 [1st Dept 2001]). “Prior damages awards in cases involving similar injuries are not binding upon the courts but serve to guide and enlighten them in determining whether a verdict constitutes reasonable compensation” (Sawh v Bally Contr. Corp., 148 AD3d 852, 853 [2d Dept 2017], quoting Kasulas v Saco, 134 AD3d 772, 774 [2d Dept 2015]).
Of course, courts cannot expect or require a perfect factual identity. Courts, however, can fulfill their statutory obligation by determining what awards have been made in analogous cases and whether they fall within those boundaries (see Donlon, 284 A.D.2d at 18). Conditional increases and reductions (additurs and remittiturs) establish the outer boundaries of what awards have been deemed to be fair and reasonable for a type of injury. Where a court determines that an award is excessive, the court must reduce the award “only to the [maximum] amount that the jury could properly have awarded” (Rangolan v County of Nassau, 370 F3d 239, 244 [2d Cir 2004], quoting 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2815, at 167–8 [2nd ed. 1995]). In other words, a reduction reflects the maximum amount sustainable for that particular type of plaintiff and injury. On the other hand, an additur only represents the minimum amount that is sustainable.
The sustainable value law in New York provides a structured framework for determining reasonable compensation, but navigating this legal landscape requires specialized knowledge and skills. Appellate counsel can help plaintiffs’ attorneys capitalize on the nuances of the law, examine comparable cases, and present compelling arguments that support their claims. Undertaking this effort can provide the leverage to settle a claim for more than the other side is “used” to settle such cases. Contact us to discuss how we can help you with determining the sustainable value of your case.