Goncalves v. Campbell

280 A.D.2d 991, 720 N.Y.S.2d 423, 2001 N.Y. App. Div. LEXIS 1209

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 2001
• Status: Published

Opinion

—Order unanimously modified on the law and as modified affirmed without costs and new trial granted on damages for past pain and suffering only. Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained in a motor vehicle accident. At trial, defendants conceded liability, and the jury found that plaintiff sustained a serious injury pursuant to Insurance Law § 5102 (d). The jury, however, awarded no damages for past or future pain and suffering. Supreme Court erred in denying that part of plaintiffs motion to set aside the verdict with respect to past pain and suffering as against the weight of the evidence. In view of conceded liability and the verdict in favor of plaintiff that she suffered a serious injury, we conclude that “the preponderance of the evidence in favor of [plaintiff] is so great that the verdict [with respect to past pain and suffering] could not have been reached upon any fair interpretation of the evidence” (Dannick v County of Onondaga, 191 AD2d 963, 964; see, Chin v Kaplan, 280 AD2d 892 [decided herewith]). We conclude, however, that the jury’s verdict with respect to future pain and suffering is not against the weight of the evidence. Consequently, we modify the order by granting plaintiffs motion in part and setting aside the verdict with respect to past pain and suffering, and we grant a new trial on damages for past pain and suffering only. (Appeal from Order of Supreme Court, Onondaga County, McCarthy, J. — Set Aside Verdict.) Present — Pigott, Jr., P. J., Green, Hayes, Burns and Lawton, JJ.