Figliomeni v. Board of Education

44 A.D.2d 886, 355 N.Y.S.2d 514, 1974 N.Y. App. Div. LEXIS 5016

Opinion

Judgment unanimously modified by increasing the amount of the award to $175,000, with interest and costs, and as modified affirmed with costs to plaintiff. Memorandum: On May 20, 1966 plaintiff was accidentally struck in the head by a hard baseball thrown by defendant Gangemi, resulting in multiple fractures of the left frontal bone and injury to his brain requiring surgery.' As -a result of the accident he has, among other things, suffered post-traumatic epilepsy, which has not responded to medication, and a disabling dysphasia. The epileptic seizures are permanent and although he will have a normal life expectancy, which was computed at 50 years from the time of trial in April, 1973, he will probably require constant nursing and personal care for the rest of his life. The award of $125,000 plus interest and costs made by the Trial Judge, after a trial solely on the amount of damages, without a jury, is inadequate and should he increased to $175,000 plus interest and costs. (CPLR 5522; Duffy v. City of New York, 7 A D 2d 988; 7 Weinstein-Korn-Miller, N. Y. Civ. Prae., par. 5522.04.) (Appeals from judgment of Onondaga Trial Term in negligence action.) Present—Witmer, J. P., Moule, Cardamone, Mahoney and Goldman, JJ.