Coleman v. New York City Transit Authority

44 A.D.2d 673, 355 N.Y.S.2d 326, 1974 N.Y. App. Div. LEXIS 5174

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 25, 1974
• Status: Published

Opinion

Judgment, Supreme Court, New York County, entered May 29, 1973, unanimously reversed, on the law and on the facts, and a new trial granted.on the issue of damages, with $60 costs and disbursements of this appeal to abide the event, unless the plaintiff-respondent within 20 days of service upon him by the defendant-appellant of a copy of the order entered herein, with notice of entry, serves and flies in the office of the clerk of the trial court a written stipulation consenting to reduce the verdict to $930,000 and to the entry of an, amended judgment in accordance therewith. If the plaintiff-respondent consents to the reduction, the judgment, as so amended and reduced, is. affirmed, without costs and without disbursements. In our opinion the jury verdict was excessive to the extent indicated. The granting of the motion to amend the ad damnum,, not based upon papers, and relying solely upon a notice of intention to amend and oral presentation, was improvident in our view. Concur — Markewieh, J. P., Murphy, Steuer, Tilzer and Capozzoli, JJ.