Aurilia v. Greco

186 A.D.2d 773, 589 N.Y.S.2d 804, 1992 N.Y. App. Div. LEXIS 12282

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 26, 1992
• Status: Published

Opinion

— In a negligence action to recover damages for personal injuries, the defendants Salvatore Greco and Carmela Leasing Corp. appeal from a judgment of the Supreme Court, Kings County (Spodek, J.), entered July 20, 1990, which is in favor of the plaintiff and against them in the principal sum of $90,000 ($130,000 less 40% attributable to the jury’s apportionment of the fault to the plaintiff).

Ordered that the judgment is affirmed, with costs.

The defendants contend that the jury’s verdict awarding the plaintiff $130,000 for future pain and suffering was inconsistent with its finding that the plaintiff’s injuries were of a nonpermanent nature and did not result in a significant limitation of the use of a bodily function. It is well-settled that objections to a verdict on the ground of inconsistency must be raised before the jury is discharged, at which time corrective action may be taken by resubmitting the matter to the jury (see, Barry v Manglass, 55 NY2d 803, 806; Marine Midland Bank v Russo Produce Corp., 50 NY2d 31; Barone v City of Mount Vernon, 170 AD2d 557, 558; Strauss v Huber, 161 AD2d 629, 630). Because the claim of inconsistency was not raised in the instant case until after the jury was discharged, the issue is not properly before this Court (see, Barry v Manglass, supra; Barone v City of Mount Vernon, supra; Strauss v Huber, supra).

The defendants also contend that the jury’s award of $130,000 for future pain and suffering is excessive. The standard to be applied is whether the award "deviates materially from what would be reasonable compensation” (CPLR 5501 [c]). We find that the award is not excessive. Mangano, P. J., Sullivan, Balletta and O’Brien, JJ., concur.