Desiderio v. Ochs

294 A.D.2d 241, 741 N.Y.S.2d 865, 2002 N.Y. App. Div. LEXIS 5435

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 2002
• Status: Published

Opinion

—Order and judgment (one paper), Supreme Court, New York County (Alice Schlesinger, J.), entered June 4, 2001, awarding plaintiff damages against defendant hospital in the principal amount of $50,123,293, before structuring, including $1.5 million for past pain and suffering and $3 million for future pain and suffering over 55 years, upon plaintiffs stipulation, in lieu of a new trial on damages, reducing the jury’s award of damages in the principal amount of $79,873,293, before structuring, including $2 million for past pain and suffering, $30 million for future pain and suffering and $40 million for future nursing care, and, for purposes of structuring pursuant to CPLR article 50-A, determining the total present value of the award to be $28,873,490, before interest, unanimously affirmed, without costs.

The awards for past and future pain and suffering, as reduced by the trial court, do not deviate from what is reasonable compensation for the severe brain damage sustained by plaintiff when he was four years, taking into account his preexisting impairments since birth. In addition, as the trial court indicated, defendant’s evidence that the care plaintiff needs can be provided by licensed practical nurses is not so weighty as to warrant judicial “usurpation” of the jury’s finding that plaintiff requires permanent, around-the-clock care by registered nurses. The methodology used to structure the judgment is in accordance with CPLR 5031 (e) and Bryant v New York City Health & Hosps. Corp. (93 NY2d 592), and should not be disturbed. We have considered defendant’s other arguments and find them to be unavailing. Concur—Williams, P.J., Buckley, Rosenberger and Lemer, JJ.