Duffy v. City of New York

Appellate Division of the Supreme Court of New York

Duffy v. City of New York

7 A.D.2d 988, 183 N.Y.S.2d 863, 1959 N.Y. App. Div. LEXIS 9364

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 31, 1959

StatusPublished

Cited by10 cases

This text of 7 A.D.2d 988 (Duffy v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Duffy v. City of New York, 7 A.D.2d 988, 183 N.Y.S.2d 863, 1959 N.Y. App. Div. LEXIS 9364 (N.Y. Ct. App. 1959).

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Opinion

Judgment unanimously modified on the law and on the facts, pursuant to subdivision 2 of section 584 of the Civil Practice Act (see Bernadine v. City of New York, 268 App. Div. 444, affd. 294 N. Y. 361), to the extent of reducing the damages awarded for wrongful death to $85,000 and by allowing interest only on $29,000 from the date of death to date of judgment, and as so modified, the judgment is affirmed, without costs. In this action to recover damages for wrongful death and for conscious pain and suffering, the appeal by the defendant, the City of New York, is from a judgment entered upon a decision by the court below, sitting without a jury, in favor of the administratrix far $130,000 for wrongful death and $3,500 for conscious pain and suffering. In addition, $1,454.70 was allowed for funeral expenses. Since Bronx Towing Line, Inc., the other defendant, had settled with plaintiff for $56,000 before trial, the court subtracted that sum from the $130,000, leaving the City of New York liable for $74,000. The trial court then awarded interest on the full $130,000 from the date of death to the entry of the judgment. We find that the judgment entered is sustained by the record except for the extent of the damages awarded for wrongful death .and the allowance of interest. In our opinion the damages awarded for wrongful death were excessive. Under the circumstances we find that $85,000 would be just and fair compensation. We do not disturb the decision as to conscious pain and suffering or as to funeral expenses. In awarding interest only the difference between what Bronx Towing Line, Inc., paid and what is allowed herein ($85,000) should form the basis for calculation. The court [989]*989below erred in figuring interest on the full amount. Settle order on notice. Concur — Botein, P. J., M. M. Frank, Valente, McNally and Stevens, JJ.

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Judgment unanimously modified on the law and on the facts, pursuant to subdivision 2 of section 584 of the Civil Practice Act (see Bernadine v. City of New York, 268 App. Div. 444, affd. 294 N. Y. 361), to the extent of reducing the damages awarded for wrongful death to $85,000 and by allowing interest only on $29,000 from the date of death to date of judgment, and as so modified, the judgment is affirmed, without costs. In this action to recover damages for wrongful death and for conscious pain and suffering, the appeal by the defendant, the City of New York, is from a judgment entered upon a decision by the court below, sitting without a jury, in favor of the administratrix far $130,000 for wrongful death and $3,500 for conscious pain and suffering. In addition, $1,454.70 was allowed for funeral expenses. Since Bronx Towing Line, Inc., the other defendant, had settled with plaintiff for $56,000 before trial, the court subtracted that sum from the $130,000, leaving the City of New York liable for $74,000. The trial court then awarded interest on the full $130,000 from the date of death to the entry of the judgment. We find that the judgment entered is sustained by the record except for the extent of the damages awarded for wrongful death .and the allowance of interest. In our opinion the damages awarded for wrongful death were excessive. Under the circumstances we find that $85,000 would be just and fair compensation. We do not disturb the decision as to conscious pain and suffering or as to funeral expenses. In awarding interest only the difference between what Bronx Towing Line, Inc., paid and what is allowed herein ($85,000) should form the basis for calculation. The court [989]*989below erred in figuring interest on the full amount. Settle order on notice. Concur — Botein, P. J., M. M. Frank, Valente, McNally and Stevens, JJ.

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Bluebook (online)

7 A.D.2d 988, 183 N.Y.S.2d 863, 1959 N.Y. App. Div. LEXIS 9364, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duffy-v-city-of-new-york-nyappdiv-1959.

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