Marrone v. Orson Holding Corp.

15 A.D.3d 631, 789 N.Y.S.2d 901, 2005 N.Y. App. Div. LEXIS 2022

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 2005
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants appeal from a judgment of the Supreme Court, Kings County (Douglass, J.), dated November 6, 2003, which, following an inquest on the issue of damages, finding that the plaintiff sustained damages in the sum of $540,000 for past pain and suffering, $150,000 for future pain and suffering, and $35,000 for future medical expenses, is in favor of the plaintiff and against them in the principal sum of $725,000.

Ordered that the judgment is modified, on the facts and as a matter of discretion, and the defendants are granted a new trial on the issue of damages as to past pain and suffering only; as so modified, the judgment is affirmed, without costs or disbursements, unless within 30 days after service upon the plaintiff of a copy of this decision and order, the plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting to reduce the verdict as to damages for past pain and suffering from the sum of $540,000 to the sum of $200,000 and to the entry of an appropriate amended judgment accordingly; in the event that the plaintiff so stipulates, then the judgment, as so reduced and amended, is affirmed, without costs or disbursements.

The award of damages for past pain and suffering is excessive to the extent indicated (see CELR 5501 [c]; cf. Calo v Wal-Mart Stores, 305 AD2d 352 [2003]; Milne v Loyal Order of Moose Lodge No. 168, 302 AD2d 569, 570 [2003]; Lamb v Babies ‘R’ Us, 302 AD2d 368, 369 [2003]; Julien v Physician’s Hosp., 231 AD2d 678 [1996]).

The defendants’ remaining contentions either are unpreserved for appellate review or without merit. Santucci, J.E, Krausman, Mastro and Skelos, JJ., concur.