Summary
In Kenny, there was clearly no way a reasonable factfinder could conclude that the defendant attorneys had not caused their client's loss.
Summary of this case from Diamond v. SokolOpinion
July 14, 1992
Appeal from the Supreme Court, Monroe County, Rosenbloom, J.
Present — Boomer, J.P., Green, Balio, Boehm and Fallon, JJ.
Judgment unanimously affirmed with costs to plaintiff. Memorandum: The jury's finding that plaintiff was 50% at fault in slipping and falling in defendant's store was not against the weight of the evidence.
Contrary to plaintiff's contention, we conclude that the award for pain and suffering did not deviate materially from what would be reasonable compensation (see, CPLR 5501 [c]). The jury had a rational basis for its failure to make an award for future pain and suffering. Based on the testimony of defendant's medical expert and the psychologist who treated plaintiff for control of her pain, the jury was justified in concluding that any pain that plaintiff may have continued to suffer was related to factors other than her fall in defendant's store.
Defendant has not preserved for review its argument that the award for lost wages should have been reduced because of plaintiff's comparative negligence after the collateral source benefits were subtracted.
We have reviewed the other issues raised by plaintiff and the issues raised by defendant on the cross appeal and we conclude that they lack merit.