Lemlek v. Israel

New York Court of Appeals

Lemlek v. Israel

577 N.E.2d 1041, 78 N.Y.2d 891, 573 N.Y.S.2d 449, 1991 N.Y. LEXIS 827

DecidedJune 11, 1991

StatusPublished

This text of 577 N.E.2d 1041 (Lemlek v. Israel) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lemlek v. Israel, 577 N.E.2d 1041, 78 N.Y.2d 891, 573 N.Y.S.2d 449, 1991 N.Y. LEXIS 827 (N.Y. 1991).

Pincite

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to defendant Israel against plaintiff, by ordering a new trial as to damages, and, as so modified, affirmed, with costs to defendant Hospital for Joint Diseases Orthopedic Institute against defendant Israel.

The Appellate Division correctly held that the jury’s findings of liability on the part of defendant Israel and no liability on the part of defendant hospital were sufficiently supported by the evidence, but that the finding of comparative fault on the part of plaintiff was without support in the record.

Nevertheless, a new trial on the issue of damages is required because the trial court erroneously instructed the jury that it could award damages for loss of enjoyment of life separately from any award of damages for pain and suffering (see, McDougald v Garber, 73 NY2d 246; Nussbaum v Gibstein, 73 NY2d 912).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Hancock, Jr., concur in memorandum; Judge Bellacosa taking no part.

Order modified, etc.

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