Opinion
October 26, 1995
Appeal from the Supreme Court, New York County (Harold Tompkins, J.).
The trial court properly set aside the jury verdict in the first trial (CPLR 4404 [a]) and ordered a new trial on the issue of damages only. A review of the record of that trial leads us to conclude that the findings of liability and apportionment of fault were amply supported by the record and were not infected by the jury's failure to award damages in the face of the uncontroverted testimony of plaintiffs' medical expert ( Figliomeni v. Board of Educ., 38 N.Y.2d 178).
With respect to the second trial, we find the court erred insubmitting the infant plaintiff's natural guardian's loss of services claim to the jury since the parties had previously entered into a stipulation in open court withdrawing said cause of action, and further, there has been no evidence to warrant the award of such damages.
Concur — Ellerin, J.P., Rubin, Kupferman, Williams and Mazzarelli, JJ.