Pickman v. Musclow

Appellate Division of the Supreme Court of New York

Pickman v. Musclow

249 A.D.2d 958, 672 N.Y.S.2d 567, 1998 N.Y. App. Div. LEXIS 5078

Appellate Division of the Supreme Court of the State of New York·Decided April 29, 1998·Published

Opinion

—Order unanimously affirmed without costs. Memorandum: Supreme Court did not err in ordering a new trial after setting aside the verdict in this personal injury action (see, CPLR 4404 [a]). The jury found that plaintiffs three-year-old son did not sustain a significant disfiguring scar. The y-shaped scar on the child’s forehead, however, is more than 3V2 inches in length and is the result of a deep laceration that required 40 to 50 stitches. While the scar may be realigned by surgery when the child is a teenager, it cannot be eliminated and will be noticeable for the rest of the child’s life. The court properly concluded that “the evidence so preponderated in favor of * * *plaintiff that the verdict could not have been reached on any fair interpretation of the evidence” (Petrivelli v Walz, 227 AD2d 735; see, Zulawski v Zulawski, 170 AD2d 979). (Appeal from Order of Supreme Court, Livingston County, Cicoria, J. — Set Aside Verdict.) Present — Pine, J. P., Hayes, Wisner, Pigott, Jr., and Boehm, JJ.

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—Order unanimously affirmed without costs. Memorandum: Supreme Court did not err in ordering a new trial after setting aside the verdict in this personal injury action (see, CPLR 4404 [a]). The jury found that plaintiffs three-year-old son did not sustain a significant disfiguring scar. The y-shaped scar on the child’s forehead, however, is more than 3V2 inches in length and is the result of a deep laceration that required 40 to 50 stitches. While the scar may be realigned by surgery when the child is a teenager, it cannot be eliminated and will be noticeable for the rest of the child’s life. The court properly concluded that “the evidence so preponderated in favor of * * *plaintiff that the verdict could not have been reached on any fair interpretation of the evidence” (Petrivelli v Walz, 227 AD2d 735; see, Zulawski v Zulawski, 170 AD2d 979). (Appeal from Order of Supreme Court, Livingston County, Cicoria, J. — Set Aside Verdict.) Present — Pine, J. P., Hayes, Wisner, Pigott, Jr., and Boehm, JJ.

Pickman v. Musclow, 249 A.D.2d 958, 672 N.Y.S.2d 567, 1998 N.Y. App. Div. LEXIS 5078 (N.Y. Ct. App. 1998).

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