Mammarella v. Consolidated Edison Co.

44 A.D.2d 571, 353 N.Y.S.2d 38, 1974 N.Y. App. Div. LEXIS 5530

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 11, 1974
• Status: Published

Opinion

In this action tovrecover damages for wrongful death, defendants appeal from a judgment ofvthe Supreme Court, Queens County, entered November 17, 1972, in favor of plaintiff, upon a jury verdict of $55,000. Judgment reversed, on the law, and' new trial granted, with costs to abide the event, unless, within 30 days after entry of the order to be made hereon, plaintiff shall serve and file in the office pf the clerk of the trial court a written stipulation consenting to reduce the verdict in her favor to $20,000 and to the entry of an amended judgment in accordance therewith, in which event the judgment, as so reduced and amended, is affirmed, without costs. We have considered the questions of fact and have determined that we would not grant a new trial upon those questions. All of the defendants, in two separate demands for bills of particulars, asked that plaintiff state the place of her intestate’s employment and the loss of earnings claimed. Defendant Cerosa also demanded that “ an itemized list of any of the -damages suffered in connection with the death of the deceased” be set forth. In regard to the general demand regarding employment and earnings, plaintiff stated: “Not applicable”. In response to the itemized list of damages incurred as a result of the death of the deceased, plaintiff stated: “Not elaim'ed”, Cerosa also demanded that plaintiff state the “loss of earnings with name and address of employer,” as an item sought for special damages. Plaintiff responded that this item was “ not applicable ”. At the trial, over the objection of defendants, the court received proof that the deceased was employed and his earning records were permitted in evidence. The trial court erroneously permitted evidence as to future earnings when plaintiff had disavowed such earnings as “not applicable” in this case. Deducting from the amount awarded by the jury the totals of such items and considering the other factors in the ease, the verdict was excessive to the extent indicated herein. Culotta, P. J., Hopkins, Martuscello, Shapiro and Munder, JJ., concur.