Mogil v. Gorgone

225 A.D.2d 674, 639 N.Y.2d 484, 639 N.Y.S.2d 484, 1996 N.Y. App. Div. LEXIS 2662

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 18, 1996
• Status: Published

Opinion

Contrary to the defendants third-party plaintiffs’ contentions, the jury verdict apportioning liability was not against the weight of the evidence. The conflicting evidence presented a question of credibility which the jury resolved and the verdict was reached upon a fair interpretation of the evidence (see, Campbell v Driscoll, 190 AD2d 771; Nicastro v Park, 113 AD2d 129; see also, Rice v Massalone, 160 AD2d 861; Sic v Moran, 208 AD2d 607).

Further, it is well settled that the amount of damages to be awarded for personal injuries is primarily a question of fact for the jury (see, Rodriguez v City of New York, 191 AD2d 420; Florsz v Ogruk, 184 AD2d 546). An award is excessive or inadequate if it deviates materially from what would be reasonable compensation (see, CPLR 5501 [c]). Considering the totality of the plaintiff’s injuries and the period of disability accompanied by pain and suffering, we find that the jury verdict of $150,000 did not deviate materially from what would be reasonable compensation (see, CPLR 5501 [c]; Orris v Orris, 189 AD2d 866; Stern v Calzado, .163 AD2d 299).

However, we find that the judgment must be modified since the defendants third-party plaintiffs are not entitled to contribution from the third-party defendant until they have paid the plaintiff an amount in excess of their share of the judgment (see, CPLR 1402; see also, Klinger v Dudley, 41 NY2d 362, 369; McCabe v Queensboro Farm Prods., 22 NY2d 204; Adams v Lindsey, 77 Misc 2d 824, 826). O’Brien, J. P., Santucci, Altman and Goldstein, JJ., concur.