Dillen v. County of Erie

101 A.D.2d 687, 475 N.Y.S.2d 677, 1984 N.Y. App. Div. LEXIS 18232

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 12, 1984
• Status: Published

Opinion

— Judgment unanimously modified and, as modified, affirmed, with costs to plaintiff, in accordance with the following memorandum: In its appeal from a judgment awarding damages for conscious pain and suffering and wrongful death arising out of the drowning of the 15-year-old infant decedent at a school picnic, defendant’s principal contention is that the verdicts (as reduced by apportioning 65% of the fault to decedent) in the amounts of $35,000 for wrongful death and $5,000 for conscious pain and suffering were excessive. We disagree (see De Long v County of Erie, 60 NY2d 296; Parilis v Feinstein, 49 NY2d 984; Franchell v Sims, 73 AD2d 1). There was no error in the court’s exercise of its discretion in granting plaintiff leave to amend its complaint to allege a cause of action for conscious pain and suffering inasmuch as such claim was asserted in the notice of claim filed pursuant to section 50-e of the General Municipal Law and no prejudice was shown (CPLR 3025, subd |b]; see Fahey v County of Ontario, 44 NY2d 934). 11 We agree with plaintiff in his cross appeal that the court erred in reducing the verdict of $8,000, the figure the jury arrived at after reconsidering and correcting an imperfect verdict in the amount of $5,000 (see Abbey Rent A Car v Moore, 30 AD2d 952). Accordingly, the $8,000 verdict for conscious pain and suffering is reinstated. (Appeals from judgment of Supreme Court, Erie County, McGowan, J. — wrongful death.) Present — Hancock, Jr., J. P., Denman, Boomer, O’Donnell and Schnepp, JJ.