Opinion
06-197, 570118/06.
Decided July 3, 2006.
Plaintiff appeals from an order of the Civil Court, New York County (Barbara Jaffe, J.), entered August 24, 2005, which denied his motion to set aside the verdict on the issue of damages and for a new trial on issue of damages, or in the alternative, for additur.
Order (Barbara Jaffe, J.) entered August 24, 2005, affirmed, with $10 costs.
Before: PRESENT: McKEON, P.J., DAVIS, GANGEL-JACOB, JJ.
This action seeks recovery of damages under the Federal Employers' Liability Act (FELA) for personal injuries sustained by plaintiff in a series of accidents that occurred while he was working for defendant Port Authority. After trial, the jury returned a verdict finding that plaintiff was 85% at fault with respect to the April 1994 accident and awarded him $15,000 in damages. In connection with the April 1996 accident, the jury apportioned liability at 55% for plaintiff and 45% for defendant, and awarded plaintiff $50,000 for past pain and suffering, and $200,000 for future pain and suffering. Plaintiff moved to set aside the damages verdict on the grounds of jury confusion, inadequacy and newly discovered evidence.
Plaintiff's motion to set aside the verdict on the ground of jury confusion was properly denied as no juror confusion is apparent from the trial record ( see Moisakis v. Allied Building Products Corp., 265 AD2d 457; compare Hersh v. New York City Transit Authority, 290 AD2d 258). Absent exceptional circumstances, a juror's post-verdict affidavit may not be used to attack a jury verdict ( see Richards v. Forest City Enterprises, Inc., 272 AD2d 462).
With respect to the adequacy of the damages awarded for past pain and suffering, we agree that the sums were not so inadequate as to "shock the judicial conscience" ( see Cruz v. Long Island Railroad Co., 22 AD3d 451). Nor has plaintiff presented "newly discovered evidence" sufficient to warrant a new trial on the issue of damages for future pain and suffering ( see Schultz v. Turner Construction Co., 278 AD2d 76; Prote Contracting Co., Inc. v. Bd. of Educ. Of the City of New York, 230 AD2d 32).
This constitutes the decision and order of the court.