Tucker v. City of New York

45 A.D.2d 1051, 358 N.Y.S.2d 23, 1974 N.Y. App. Div. LEXIS 4322

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 29, 1974
• Status: Published

Opinion

In an action for wrongful death and conscious pain and suffering, defendant appeals from a judgment of the Supreme Court, Kings County entered July 10, 1973 upon a jury verdict, which awarded plaintiff $45,000 on the wrongful death claim, and $25,000 on the conscious pain and suffering claim. Judgment reversed, on the law, and a new trial ordered, limited to the issue of damages, with costs to abide the event, unless plaintiff stipulates to reduce the wrongful death award from $45,000 to $7,500 with 6% interest from March 7, 1968 to July 10, 1973; and also stipulates to reduce the conscious pain and suffering award from $25,000 to $5,000 with 6% interest from May 2, 1973 to July 10, 1973, in which event the judgment as modified is affirmed, without costs or disbursements to any party. The wrongful death and conscious pain and suffering awards were grossly excessive to the extent indicated. Wé note further that the court below erred in computations. Six per cent interest is to be assessed on the wrongful death award from the date of death until date of entry of judgment (see Toomey v. New York City Tr. Auth., 10 A D 2d 728, affd. 8 N Y 2d 970; Mulligan v. Wetchler, 39 A D 2d 102, app. dsmd. 30 N Y 2d 951; General Municipal Law, § 3-a). Six per cent is also to be assessed on the conscious pain and suffering award from date “the verdict was rendered or the report or decision was made to the date of entry of final judgment” (CPLR 5002). Latham, Acting P. J., Cohalan, Christ, Brennan and Munder, JJ., concur.