Mikaelian v. Accurso

73 A.D.2d 640, 422 N.Y.S.2d 750, 1979 N.Y. App. Div. LEXIS 14459

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 17, 1979
• Status: Published

Opinion

— In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Westchester County, entered November 9, 1977, as awarded the infant plaintiff only $30,000. (The jury verdict in favor of the infant was originally $36,000, but was reduced by one sixth based upon said plaintiff’s failure to mitigate her damages by use of a seat belt.) Judgment reversed insofar as appealed from, on the law, the second decretal paragraph thereof is deleted, and, as between the infant plaintiff and defendants, the action is severed and a new trial is granted, with respect to the issue of damages sustained by said plaintiff, with costs to abide the event, unless within 20 days after service upon defendants of a copy of the order to be made hereon together with notice of entry thereof, defendants shall serve and file in the office of the clerk of the trial court written stipulations consenting to increase the verdict in favor of said plaintiff to $65,000, less one sixth, in which event the judgment as so increased and amended is affirmed insofar as appealed from, without costs or disbursements. In our opinion, the award of damages was inadequate in view of the nature and extent of the injuries sustained by the infant plaintiff. The trial court’s charge on mitigation was proper and the jury’s conclusion that one sixth of the injuries had resulted from the infant plaintiff’s failure to use a seat belt should be reapplied to the new award. Titone, J. P., Mangano, Rabin and Gibbons, JJ., concur.