Smith v. City of New York

Appellate Division of the Supreme Court of New York

Smith v. City of New York

217 A.D.2d 423, 629 N.Y.S.2d 411, 1995 N.Y. App. Div. LEXIS 7642

Appellate Division of the Supreme Court of the State of New York·Decided July 6, 1995·Published·Cited by 6 cases

Opinion

Judgment, Supreme Court, New York County (Peter Tom, J.), entered February 15, 1994, which, following a jury trial, inter alia, awarded plaintiff the sum of $2,047,000, [424] plus interest, costs and disbursements, unanimously affirmed, without costs. Appeal from an order of the same court and Justice, entered on or about December 6, 1993, which granted defendants’ motion for judgment notwithstanding the verdict or for a new trial or, alternatively, to reduce the jury verdict on the ground of excessiveness to the extent of reducing the amount of the jury’s verdict, unanimously dismissed as superseded by the appeal from the judgment of February 15, 1994, without costs.

The record supports the trial court’s reduction of the jury award in respect to plaintiff’s pain and suffering both up to the date of verdict and in futuro as well as the future medical expense. Respect must be accorded to the sound exercise of discretion by the Trial Judge, who was in the best position to hear and see the witnesses testify and to observe courtroom events (see, Pena v New York City Tr. Auth., 185 AD2d 794, 795). As for defendants’ contention that they were prejudiced by certain comments made by plaintiff’s counsel in the course of his summation, their failure to object or move for a mistrial constitutes a waiver of any right to complain (CPLR 4017; see, Torrado v Lutheran Med. Ctr., 198 AD2d 346, 347), and they were certainly not deprived of a fair trial.

We have considered the parties’ remaining arguments and find them to be without merit. Concur—Rubin, J. P., Ross, Asch and Mazzarelli, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Judgment, Supreme Court, New York County (Peter Tom, J.), entered February 15, 1994, which, following a jury trial, inter alia, awarded plaintiff the sum of $2,047,000, [424] plus interest, costs and disbursements, unanimously affirmed, without costs. Appeal from an order of the same court and Justice, entered on or about December 6, 1993, which granted defendants’ motion for judgment notwithstanding the verdict or for a new trial or, alternatively, to reduce the jury verdict on the ground of excessiveness to the extent of reducing the amount of the jury’s verdict, unanimously dismissed as superseded by the appeal from the judgment of February 15, 1994, without costs.

The record supports the trial court’s reduction of the jury award in respect to plaintiff’s pain and suffering both up to the date of verdict and in futuro as well as the future medical expense. Respect must be accorded to the sound exercise of discretion by the Trial Judge, who was in the best position to hear and see the witnesses testify and to observe courtroom events (see, Pena v New York City Tr. Auth., 185 AD2d 794, 795). As for defendants’ contention that they were prejudiced by certain comments made by plaintiff’s counsel in the course of his summation, their failure to object or move for a mistrial constitutes a waiver of any right to complain (CPLR 4017; see, Torrado v Lutheran Med. Ctr., 198 AD2d 346, 347), and they were certainly not deprived of a fair trial.

We have considered the parties’ remaining arguments and find them to be without merit. Concur—Rubin, J. P., Ross, Asch and Mazzarelli, JJ.

Smith v. City of New York, 217 A.D.2d 423, 629 N.Y.S.2d 411, 1995 N.Y. App. Div. LEXIS 7642 (N.Y. Ct. App. 1995).

Pincite

217 A.D.2d 423 (Smith v. City of New York) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related