Opinion
2002-01591
Argued March 27, 2003.
April 14, 2003.
In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Kings County (Harkavy, J.), dated January 11, 2002, as, upon the granting of the plaintiffs' motion pursuant to CPLR 4401 for judgment as a matter of law on the issue of liability finding the defendants 100% at fault in the happening of the accident, and upon a jury verdict finding, inter alia, that the plaintiff Marcia Lohar sustained damages in the sum of $2,000,000 for past pain and suffering, $5,000,000 for future pain and suffering, and $610,000 for future lost earnings, and upon the denial of their motion pursuant to CPLR 4404 to set aside the verdict on damages as excessive, is in favor of the plaintiffs and against them on the issue of liability and is in favor of the plaintiff Marcia Lohar and against them in the principal sum of $7,610,000.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow, Ellen Zincke, and John Hogrogian of counsel), for appellants.
Krantz Phillips, LLP, New York, N.Y. (Stephen R. Krawitz of counsel), for respondent Marcia Lohar.
Blodnick, Gordon, Fletcher Sibell, P.C., Westbury, N.Y. (Edward K. Blodnick and Robert D. Goldaber of counsel), for respondent Anthony Alan Marcus.
Before: ANITA R. FLORIO, J.P., SONDRA MILLER, GLORIA GOLDSTEIN, THOMAS A. ADAMS, JJ.
DECISION ORDER
ORDERED that the judgment is modified, on the facts and as an exercise of discretion, by deleting the provisions thereof awarding the plaintiff Marcia Lohar damages in the sum of $2,000,000 for past pain and suffering and $5,000,000 for future pain and suffering, and granting a new trial with respect to those damages only; as so modified, the judgment is affirmed, with costs payable to the appellants by the plaintiff Marcia Lohar, unless within 30 days after service upon the plaintiffs of a copy of this decision and order, the plaintiff Marcia Lohar shall serve and file in the office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting to reduce the verdict as to past pain and suffering from the sum of $2,000,000 to the sum of $800,000, and as to future pain and suffering from the sum of $5,000,000 to the sum of $1,300,000, and to the entry of an amended judgment accordingly; in the event that the plaintiff Marcia Lohar so stipulates, then the judgment, as so reduced and amended, is affirmed insofar as appealed from, without costs or disbursements.
The Supreme Court properly awarded judgment to the plaintiffs on the issue of liability at the close of evidence finding the defendant driver 100% at fault in the happening of the accident since, viewing the evidence in the light most favorable to the defendants, accepting all of their evidence as true, and resolving all credibility issues and inferences in their favor, the jury could not have found otherwise by any rational process (see CPLR 4401; Szczerbiak v. Pilat, 90 N.Y.2d 553).
The award of damages to the plaintiff Marcia Lohar for future lost earnings did not deviate materially from what would be reasonable compensation (see CPLR 5501[c]). However, the jury award to Ms. Lohar for past and future pain and suffering deviates materially from what would be reasonable compensation to the extent indicated herein (see CPLR 5501[c]; see generally Van Ness v. New York City Transit Authority, 288 A.D.2d 374; Gabor v. Goolnick, 288 A.D.2d 432).
The defendants' remaining contentions are either without merit or do not require reversal.
FLORIO, J.P., S. MILLER, GOLDSTEIN and ADAMS, JJ., concur.