Robert v. Long Island Railroad

161 A.D.2d 346, 555 N.Y.S.2d 100, 1990 N.Y. App. Div. LEXIS 5275

Opinion

Judgment, Supreme Court, New York County (Peter G. Patsalos, J.), entered January 4, 1989, finding, after a jury trial, in favor of the plaintiff against the defendant in the amount of $140,000, upon reduction in the amount of the jury verdict, based upon stipulation of counsel to reflect present value, unanimously affirmed, without costs.

Plaintiff claimed that while an employee of the Long Island Railroad, she suffered smoke inhalation and was rendered asthmatic. Although plaintiff portrayed herself as completely disabled, one of her own experts, i.e., her treating physician, characterized her asthmatic condition as "moderate”. Further, there was no medical testimony that plaintiff was completely disabled; on the contrary, plaintiffs experts indicated that she could seek employment in any smoke-free office environment. Moreover, plaintiffs counsel conceded on summation that she was capable of earning at least $30,000 yearly. Given her excessive absences from work while she was employed at the railroad, the fact that she declined to accept other jobs offered by the railroad after the incident, and her continued failure to seek meaningful employment, the jury may well have concluded that plaintiffs complaints as well as her anticipated lost earnings were greatly overstated.

Based upon the jury’s apparent disbelief of the seriousness of plaintiffs condition, we find that the award of damages herein was not inadequate, and did not deviate materially from what would be reasonable compensation (CPLR 5501 [c]). Concur—Sullivan, J. P., Carro, Rosenberger, Ellerin and Rubin, JJ.