Phillipps v. New York City Transit Authority

Appellate Division of the Supreme Court of New York

Phillipps v. New York City Transit Authority

83 A.D.3d 473, 922 N.Y.S.2d 286

Appellate Division of the Supreme Court of the State of New York·Decided April 12, 2011·Published·Cited by 4 cases

Opinion

[474] Judgment, Supreme Court, New York County (Carol E. Huff, J.), entered July 9, 2010, upon a jury verdict awarding plaintiff $300,000 for past pain and suffering and $300,000 for future pain and suffering, unanimously affirmed, without costs.

The verdict was not contrary to the weight of the evidence adduced at trial (see Cohen v Hallmark Cards, 45 NY2d 493 [1978]). In light of the unrefuted testimony of plaintiffs medical expert that a medical record entry, reflecting plaintiffs statement to hospital personnel that his injuries occurred when he fell on his back due to a sudden, violent movement of a bus he was exiting, was relevant to diagnosis and treatment, it was a proper exercise of discretion for the court to allow the entry into evidence (see People v Ortega, 15 NY3d 610 [2010]).

Defendants’ claim that plaintiffs testimony failed to establish a prima facie case of negligence is not preserved for appellate review, since they failed to move for a directed verdict at trial (see Rodgers v 72nd St. Assoc., 269 AD2d 258, 259 [2000]). In any event, plaintiffs description of the incident and the nature of his injuries was sufficient to satisfy the requirement of showing that the bus’s departure caused a jerk or lurch that was unusual and violent (see DiSalvatore v New York City Tr. Auth., 45 AD3d 402 [2007]; Fonseca v Manhattan & Bronx Surface Tr. Operating Auth., 14 AD3d 397 [2005]).

The damages awarded do not materially deviate from what would be reasonable compensation under the circumstances (CPLR 5501 [c]; see e.g. Morales v Heron, 250 AD2d 408 [1998]). Concur—Gonzalez, P.J., Sweeny, Moskowitz, Renwick and Richter, JJ.

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[474] Judgment, Supreme Court, New York County (Carol E. Huff, J.), entered July 9, 2010, upon a jury verdict awarding plaintiff $300,000 for past pain and suffering and $300,000 for future pain and suffering, unanimously affirmed, without costs.

The verdict was not contrary to the weight of the evidence adduced at trial (see Cohen v Hallmark Cards, 45 NY2d 493 [1978]). In light of the unrefuted testimony of plaintiffs medical expert that a medical record entry, reflecting plaintiffs statement to hospital personnel that his injuries occurred when he fell on his back due to a sudden, violent movement of a bus he was exiting, was relevant to diagnosis and treatment, it was a proper exercise of discretion for the court to allow the entry into evidence (see People v Ortega, 15 NY3d 610 [2010]).

Defendants’ claim that plaintiffs testimony failed to establish a prima facie case of negligence is not preserved for appellate review, since they failed to move for a directed verdict at trial (see Rodgers v 72nd St. Assoc., 269 AD2d 258, 259 [2000]). In any event, plaintiffs description of the incident and the nature of his injuries was sufficient to satisfy the requirement of showing that the bus’s departure caused a jerk or lurch that was unusual and violent (see DiSalvatore v New York City Tr. Auth., 45 AD3d 402 [2007]; Fonseca v Manhattan & Bronx Surface Tr. Operating Auth., 14 AD3d 397 [2005]).

The damages awarded do not materially deviate from what would be reasonable compensation under the circumstances (CPLR 5501 [c]; see e.g. Morales v Heron, 250 AD2d 408 [1998]). Concur—Gonzalez, P.J., Sweeny, Moskowitz, Renwick and Richter, JJ.

Phillipps v. New York City Transit Authority, 83 A.D.3d 473, 922 N.Y.S.2d 286 (N.Y. Ct. App. 2011).

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Opinion

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