Gonzalez v. Clirkat Donuts

Appellate Division of the Supreme Court of New York

Gonzalez v. Clirkat Donuts

214 A.D.2d 428, 625 N.Y.S.2d 189, 1995 N.Y. App. Div. LEXIS 4358

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

DecidedApril 18, 1995

StatusPublished

This text of 214 A.D.2d 428 (Gonzalez v. Clirkat Donuts) 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

Gonzalez v. Clirkat Donuts, 214 A.D.2d 428, 625 N.Y.S.2d 189, 1995 N.Y. App. Div. LEXIS 4358 (N.Y. Ct. App. 1995).

Pincite

Opinion

Order, Supreme Court, Bronx County (Alan Saks, J.), entered January 12, 1994, which granted plaintiffs’ motion to set aside the verdict on the issues of comparative fault and damages and directed a new trial on those issues, unanimously affirmed, without costs.

This action for personal injuries arises from the then six-year-old infant plaintiff having been severely scalded, as the result of a collision with an employee carrying a large pot of boiling water from one kitchen to the disposal area in the other, when the child emerged from a bathroom located between two kitchens in defendant restaurant. The Trial Judge properly set aside the jury verdict finding comparative fault attributable to the infant plaintiff as against the weight of the evidence (see, Merl v Adler, 207 AD2d 323), as well as the award of damages. Indeed, in this case, had a cross-appeal [429]*429been taken, we would find the infant plaintiff to be free of negligence.

Lastly, we agree with the trial court that the total award for pain and suffering was inadequate. Concur—Ellerin, J. P., Rubin, Tom and Mazzarelli, JJ.

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Order, Supreme Court, Bronx County (Alan Saks, J.), entered January 12, 1994, which granted plaintiffs’ motion to set aside the verdict on the issues of comparative fault and damages and directed a new trial on those issues, unanimously affirmed, without costs.

This action for personal injuries arises from the then six-year-old infant plaintiff having been severely scalded, as the result of a collision with an employee carrying a large pot of boiling water from one kitchen to the disposal area in the other, when the child emerged from a bathroom located between two kitchens in defendant restaurant. The Trial Judge properly set aside the jury verdict finding comparative fault attributable to the infant plaintiff as against the weight of the evidence (see, Merl v Adler, 207 AD2d 323), as well as the award of damages. Indeed, in this case, had a cross-appeal [429]*429been taken, we would find the infant plaintiff to be free of negligence.

Lastly, we agree with the trial court that the total award for pain and suffering was inadequate. Concur—Ellerin, J. P., Rubin, Tom and Mazzarelli, JJ.

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Bluebook (online)

214 A.D.2d 428, 625 N.Y.S.2d 189, 1995 N.Y. App. Div. LEXIS 4358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gonzalez-v-clirkat-donuts-nyappdiv-1995.

Opinion

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