Opinion
Argued October 12, 2001.
November 5, 2001.
In an action to recover damages for personal injuries, etc., the defendants appeal, as limited by their brief, from so much of an amended judgment of the Supreme Court, Richmond County (Ponterio, J.), dated May 1, 2000, as, upon a jury verdict, is in favor of the plaintiff Robert J. Doyle and against them in the principal sum of $415,000 for past pain and suffering.
O'Donnell McLaughlin (Sweetbaum Sweetbaum, Lake Success, N Y [Marshall D. Sweetbaum] of counsel), for appellants.
Bosco, Bisignano, Mascolo, Staten Island, N.Y. (Anthony A. Mascolo of counsel), for respondent and plaintiff.
Before: FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, SANDRA L. TOWNES, STEPHEN G. CRANE, JJ.
ORDERED that the amended judgment is affirmed insofar as appealed from, with costs.
The defendants argue that the Supreme Court erred in denying their motion to strike all of the testimony of the injured plaintiff's treating physician, Dr. Peter Godsick, and, further, that the delay in giving a curative instruction with respect to Dr. Godsick's testimony constituted an error warranting a mistrial. However, the defendants did not move for a mistrial before the Supreme Court on either of those grounds. Moreover, they failed to object to the striking of only part of Dr. Godsick's testimony and to the delayed curative instruction. Therefore, these arguments are not preserved for appellate review (see, Ritz v. Lee, 273 A.D.2d 291). The defendants also argue that the Supreme Court erred in giving a curative instruction to the jury to disregard the injured plaintiff's testimony that he "lost his house", since it only served to emphasize that testimony. Since the defendants failed to object to the curative instruction as given, this issue is also unpreserved for appellate review (see, Matter of Myers v. Goord, 274 A.D.2d 801; Marek v. DePoalo Son Bldg. Masonry, 240 A.D.2d 1007, 1009).
The amount of damages to be awarded for personal injuries is primarily a question for the jury (see, Schare v. Welsbach Elec. Corp., 138 A.D.2d 477, 478), and may be set aside only when it deviates materially from what would be reasonable compensation (see, CPLR 5501[c]). Considering the nature and the extent of the injuries sustained by the injured plaintiff, including the aggravation of his back injury, the resulting scar from the back surgery he was required to undergo, and the severe facial scarring, the award of damages for past pain and suffering does not deviate materially from what would be reasonable compensation (see, Orris v. West, 189 A.D.2d 866). We also find that the testimony of the injured plaintiff's expert was sufficient to submit a question to the jury as to whether the injured plaintiff suffered an aggravation of his back condition. The jury was entitled to accept the opinion of the plaintiff's expert and reject the testimony of the defendants' expert (see, Connolly v. Pastore, 203 A.D.2d 412, 413).
SANTUCCI, J.P., ALTMAN, TOWNES and CRANE, JJ., concur.