Armellino v. Fowler Equipment Corp.

297 A.D.2d 767, 747 N.Y.2d 799, 747 N.Y.S.2d 799, 2002 N.Y. App. Div. LEXIS 8882

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 30, 2002
• Status: Published

Opinion

The plaintiff Patrick Armellino was injured while trying to move a chute on the cement truck he drove for his employer, the third-party defendant Greco Cousins Concrete Company (hereinafter Greco). Greco was acting as a subcontractor on a project for which the defendant Fowler Equipment Corporation (hereinafter Fowler) was the general contractor. The injured plaintiff fell on his head and suffered two herniated discs requiring cervical discectomy and fusion surgery. He did not return to work after the accident.

The jury returned a verdict awarding Patrick Armellino $93,600 for past pain and suffering and $46,800 for past lost earnings, and Tara Armellino $165,500 for past loss of services and $82,500 for future loss of services. The trial court reduced Tara Armellino’s award to $55,610 for past loss of services and $0 for future loss of services on the ground that the awards “shockfed] the conscience of the court.”

The awards to the plaintiff Tara Armellino by the jury deviated materially from what would be reasonable compensation (see CPLR 5501 [c]; Walsh v Kings Plaza Replacement Serv., 239 AD2d 408, 409). Therefore, the court providently exercised its discretion in reducing the verdict as to the plaintiff Tara Armellino. However, the court made a mathematical error in calculating the adjusted past loss of services award to Tara Armellino. The appropriate number should have been $30,069 plus $15,000 or $45,069.

The parties’ remaining contentions are unpreserved for appellate review or without merit (see Barry v Manglass, 55 NY2d 803, 806; Devine v City of New York, 262 AD2d 443, 444). Florio, J.P., Friedmann, H. Miller and Crane, JJ., concur.