Feathers v. Walter S. Kozdranski, Inc.

129 A.D.2d 975, 514 N.Y.S.2d 838, 1987 N.Y. App. Div. LEXIS 45632

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 3, 1987
• Docket: Appeal No. 1
• Status: Published

Opinion

Judgment unanimously modified on the law by granting plaintiff Karen Feathers’ motion to amend the ad damnum clause to conform to the verdict, reinstating the verdict, and denying defendant’s motion to set aside the verdict and as modified affirmed without costs. Memorandum: The court erred in reducing the verdict in favor of Karen Feathers from $40,000 to $15,000. Plaintiffs established the wife’s derivative claim sufficiently to support the jury verdict and that the verdict was not excessive. Moreover, the court erred in unconditionally reducing the verdict. The court has the authority to set aside the verdict and order a new trial (CPLR 4404 [a]) or may direct a new trial on damages only unless the plaintiff agrees to entry of judgment in a specific amount, but does not have authority to reduce the verdict directly (see, Kupitz v Elliott, 42 AD2d 898, lv denied 33 NY2d 519; Ferro v Maline, 31 AD2d 779). In addition, in the absence of any showing of prejudice to defendant, the court erred in denying plaintiff Karen Feathers’ request to amend the ad damnum to conform to the jury verdict (Zieziula v Loblaws, Inc., 91 AD2d 1198, 1199). The judgment in favor of Paul Feathers is supported by the evidence and there was no error in the court’s charge. That portion of the judgment is therefore affirmed. (Appeals from judgment of Supreme Court, Niagara County, Sedita, J.—negligence.) Present—Callahan, J. P., Denman, Balio, Lawton and Davis, JJ.