Rondinone v. Matta

99 A.D.2d 733, 472 N.Y.S.2d 861, 1984 N.Y. App. Div. LEXIS 17090

Opinion

Judgment of the Supreme Court, Bronx County (Irwin M. Silbowitz, J., after jury trial), entered February 16,1983, which awarded plaintiff Eileen Rondinone $150,000 and plaintiff Charles Rondinone $35,000, both from defendant Gottesman, together with $589 costs and disbursements, and dismissed plaintiffs’ complaint against defendants Joseph Milone and Celeste Matta, unanimously modified, on the law and the facts, without costs, to the extent of directing a new trial solely on the issue of damages as to plaintiff Charles Rondinone and otherwise affirmed, unless said Charles Rondinone, within 20 days after service upon his attorney of a copy of the order herein, with notice of entry, serves and files in the office of the clerk of the trial court a written stipulation consenting to accept the verdict in his favor, as reduced, in the sum of $35,000, and to the entry of an amended judgment in accordance therewith. If plaintiff Charles Rondinone so stipulates, the judgment, as so amended and reduced, is affirmed, without costs. The trial court reduced the verdict awarded plaintiffhusband, Charles Rondinone, from $50,000 to $35,000 on his claim for derivative damages. The record supports the reduction. However, the court failed to give plaintiff husband the option of a new trial on damages in the event he refused to stipulate to the reduction of the verdict. Therefore, the judgment as to him is modified only to the extent of giving him the option of accepting the verdict as reduced or retrying the issue of damages (see Peddle v Turner Constr. Co., 92 AD2d 530). Concur — Sullivan, J. P., Ross, Asch, Bloom and Alexander, JJ.