Opinion
December 29, 1993
Appeal from the Supreme Court, Onondaga County, Hayes, J.
Present — Callahan, J.P., Green, Fallon and Davis, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: The jury returned a verdict in favor of plaintiff Lewis Bersani for $50,000 on his cause of action for false arrest and detainment and $400,000 ($77,777 for past pain and suffering and $322,223 for future pain and suffering) on his cause of action for use of excessive force and assault by police officers for defendant, Town of Cicero. The jury reduced that award by 30% because of Lewis Bersani's fault in contributing to his injuries. The jury returned a verdict in favor of plaintiff James Bersani for $25,000 on his cause of action for false arrest and detainment and $10,000 on his cause of action for use of excessive force and assault by defendant's police officers. The jury found James Bersani free of culpable conduct. Supreme Court granted defendant's motion for a new trial on the issue of damages unless the parties stipulate to reduce the award to Lewis Bersani to $15,000 on the false arrest and detainment cause of action and to $60,000 ($25,000 for past pain and suffering and $35,000 for future pain and suffering) for use of excessive force and assault, and to reduce the award to James Bersani to $10,000 on his cause of action for false arrest and detainment.
Plaintiffs contend that the court erred in ordering a new trial on the issue of damages unless plaintiffs stipulate to accept the reduced awards. We conclude that the verdict in favor of Lewis Bersani in the amount of $322,223 for future pain and suffering was excessive because it deviates materially from what would be reasonable compensation (CPLR 5501 [c]). The highest amount that can be justified by plaintiffs' evidence on pain and suffering is $227,777 ($77,777 for past pain and suffering and $150,000 for future pain and suffering). We conclude that the remaining amounts awarded by the jury to Lewis and James Bersani are supported by the evidence and do not deviate materially from what would constitute reasonable compensation (see, Malte v State of New York, 125 A.D.2d 958, lv denied 69 N.Y.2d 607). Thus, we modify the order appealed from by reinstating the jury verdict in favor of Lewis and James Bersani on their causes of action for false arrest and detainment and by ordering a new trial on the issue of damages only in the case of Lewis Bersani unless he stipulates within 20 days of service of a copy of the order of this Court to reduce the verdict to $227,777 for use of excessive force and assault.