Martinez v. Explo Inc.

224 A.D.2d 302, 638 N.Y.S.2d 434, 1996 N.Y. App. Div. LEXIS 1250

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 20, 1996
• Status: Published

Opinion

—Judgment, Supreme Court, Bronx County (Lottie Wilkins, J.), entered June 22, 1994, which, after a jury trial, awarded plaintiff $180,000, with interest, unanimously reversed, on the facts, and the matter remanded for a new trial, without costs, unless plaintiff, within 20 days after service of a copy of this order with notice of entry, stipulates to a reduction of said award to $60,000, and to the entry of an amended judgment in accordance therewith, and if plaintiff so stipulates, then the judgment, as amended, is unanimously affirmed, without costs or disbursements.

We find that from the evidence herein that it was against the weight of the evidence for the jury to conclude that plaintiff was only 40% responsible for the personal injuries he sustained while crossing in the middle of a major highway and that the van driver was 60% liable (Cohen v Hallmark Cards, 45 NY2d 493, 498). From the circumstances present, we determine that the van driver should have been chargeable with only 20% of the fault for plaintiff’s injuries and that plaintiff was responsible for 80% of the injuries. Accordingly, we reverse and remand for a new trial unless plaintiff stipulates to accept 20% of the total injuries of $300,000 as found by the jury, or $60,000. If plaintiff so stipulates, then the judgment as amended is affirmed.

The Trial Judge properly charged the jury on comparative negligence as opposed to assumption of the risk. Also, we find in the circumstances that the trial court correctly refused to admit the hospital bill. We note that the jury was fully aware of the extent of plaintiff’s injuries through the presentation of other evidence. Concur — Rosenberger, J. P., Rubin, Ross, Nardelli and Mazzarelli, JJ.