Phillipps v. New York City Transit Authority

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

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 12, 2011
• Status: Published

Opinion

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.