Opinion
112436 Index No. 151857/12 590634/13 Case No. 2020-01804
11-19-2020
Anthony FARRUGIA, Plaintiff–Appellant, v. 1440 BROADWAY ASSOCIATES, et al., Defendants–Respondents. [and a Third-Party Action]
Case No.2020–01804 Pollack Pollack Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant. London Fischer, LLP, New York (Anthony F. Tagliagambe of counsel), for respondents.
Case No.2020–01804 Pollack Pollack Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.
London Fischer, LLP, New York (Anthony F. Tagliagambe of counsel), for respondents.
Gische, J.P., Mazzarelli, Moulton, Mendez, JJ.
Order, Supreme Court, New York County (Frank P. Nervo, J.), entered September 4, 2019, which denied plaintiff's motion to set aside a jury verdict to the extent it awarded him $50,000 in damages for past pain and suffering and no damages for future pain and suffering or future lost earnings, unanimously affirmed, without costs.
The trial court correctly denied plaintiff's motion to set aside the verdict as inconsistent, because plaintiff failed to make the motion or raise the issue before the jury was discharged (see Barry v. Manglass , 55 N.Y.2d 803, 806, 447 N.Y.S.2d 423, 432 N.E.2d 125 [1981] ; Arrieta v. Shams Waterproofing, Inc. , 76 A.D.3d 495, 496, 908 N.Y.S.2d 2 [1st Dept. 2010] ). In any event, we do not find the verdict inconsistent, as there was sufficient evidence in the testimony given by multiple experts on both sides to support the jury's finding, as suggested by its award of damages for past pain and suffering and economic loss but not for future claims, that plaintiff suffered an injury that resolved before the time of trial (see e.g. Knox v. Piccorelli , 83 A.D.3d 581, 581, 921 N.Y.S.2d 251 [1st Dept. 2011] ). For the same reasons, the verdict was not legally insufficient or against the weight of the evidence (see Mescall v. Structure–Tone, Inc. , 100 A.D.3d 490, 953 N.Y.S.2d 596 [1st Dept. 2012] ). Nor was the award of $50,000 for past pain and suffering a material deviation from comparable awards in light of the jury's rejection of plaintiff's claim that his injuries were severe and permanent (see Crooms v. Sauer Bros. Inc. , 48 A.D.3d 380, 382, 853 N.Y.S.2d 29 [1st Dept. 2008] ; So v. Wing Tat Realty, Inc. , 259 A.D.2d 373, 374, 687 N.Y.S.2d 99 [1st Dept. 1999] ). The jury was entitled to accept or reject any expert's testimony in whole or in part ( Crooms , 48 A.D.3d at 382, 853 N.Y.S.2d 29 ).
The trial court correctly denied plaintiff's request for a missing witness charge, as the request was not made until after the jury was charged (see People v. Gonzalez , 68 N.Y.2d 424, 427–428, 509 N.Y.S.2d 796, 502 N.E.2d 583 [1986] ).