Espinal v. Vargas

Appellate Division of the Supreme Court of New York

Espinal v. Vargas

101 A.D.3d 1072, 956 N.Y.2d 504

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

DecidedDecember 26, 2012

StatusPublished

This text of 101 A.D.3d 1072 (Espinal v. Vargas) 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

Espinal v. Vargas, 101 A.D.3d 1072, 956 N.Y.2d 504 (N.Y. Ct. App. 2012).

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Opinion

Contrary to the defendant’s contention, there was sufficient evidence to support the award for conscious pain and suffering. The plaintiffs expert testified that the decedent was conscious for 39 minutes between the time the accident occurred and the time she was placed under anesthesia for surgery. During that time, the decedent experienced abdominal bleeding and sharp pain from broken ribs which perforated her lungs, and she was “moaning” and “groaning” in response to questioning. Accordingly, we find that a verdict awarding damages for conscious pain and suffering was warranted (see McDougald v Garber, 73 NY2d 246 [1989]; Ramos v Shah, 293 AD2d 459 [2002]).

Moreover, under the circumstances of this case, it cannot be [1073]*1073said that the jury’s award for conscious pain and suffering was excessive, since it did not deviate materially from what would be reasonable compensation (see CPLR 5501 [c]).

The defendant’s remaining contentions are without merit. Skelos, J.P., Hall, Roman and Cohen, JJ., concur.

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Contrary to the defendant’s contention, there was sufficient evidence to support the award for conscious pain and suffering. The plaintiffs expert testified that the decedent was conscious for 39 minutes between the time the accident occurred and the time she was placed under anesthesia for surgery. During that time, the decedent experienced abdominal bleeding and sharp pain from broken ribs which perforated her lungs, and she was “moaning” and “groaning” in response to questioning. Accordingly, we find that a verdict awarding damages for conscious pain and suffering was warranted (see McDougald v Garber, 73 NY2d 246 [1989]; Ramos v Shah, 293 AD2d 459 [2002]).

Moreover, under the circumstances of this case, it cannot be [1073]*1073said that the jury’s award for conscious pain and suffering was excessive, since it did not deviate materially from what would be reasonable compensation (see CPLR 5501 [c]).

The defendant’s remaining contentions are without merit. Skelos, J.P., Hall, Roman and Cohen, JJ., concur.

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Bluebook (online)

101 A.D.3d 1072, 956 N.Y.2d 504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/espinal-v-vargas-nyappdiv-2012.

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