Tri-State Aluminum Products, Inc. v. Paramount Macaroni Manufacturing Co.

247 A.D.2d 606, 669 N.Y.S.2d 229, 1998 N.Y. App. Div. LEXIS 1735

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 23, 1998
• Status: Published

Opinion

In an action, inter alia, to recover damages for negligence, the plaintiffs appeal, as limited by their brief, from so much of an order and judgment (one paper) of the Supreme Court, Nassau County (Adams, J.), dated December 9, 1996, as set aside the jury verdict as excessive and awarded them damages in the sum of only $200,000, and the defendant cross-appeals, as limited by its brief, from so much of the same order and judgment as denied its motion for a new trial.

Ordered that the order and judgment is modified by deleting the provision thereof which awarded the plaintiffs damages in the sum of $200,000; as so modified', the order and judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a new trial as to damages.

While we agree with the Supreme Court that the damage award was excessive, we find no support in the record for the amount fixed by the court. In addition, we note that it was procedurally improper for the court to enter a judgment reducing the award of damages without ordering a new trial on the issue of damages unless the plaintiffs stipulated to reduce the verdict (see, CPLR 4404 [a]; Hastings v Jonathan Cass, Inc., 213 AD2d 595; Anderson v Stephen M. Donis, D.P.M., P. C., 150 AD2d 414).

Miller, J. P., Ritter, Pizzuto and Altman, JJ., concur.