Virkler v. Shockney

178 A.D.2d 966

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 26, 1991
• Status: Published

Opinion

— Order and judgment unanimously affirmed with costs. Memorandum: We conclude that the jury’s award of damages did not "deviat[e] materially from what would be reasonable compensation” (CPLR 5501 [c]) for the severe injuries and disability sustained by plaintiff. The trial court did not err by failing to hold a collateral source hearing with respect to the award for loss of earnings (see, CPLR 4545 [c]). Following announcement of the verdict, the court set a date for motions addressed to the verdict. Defense counsel indicated the need for a collateral source hearing. The court suggested that counsel for both parties resolve that issue between themselves, and counsel assured the court that they would attempt to resolve the issue before the date set for the posttrial motion. The court then indicated that until it heard the motion, it would not need to conduct a hearing. In our view, the court indicated that defendants’ request should be part of its posttrial motion, unless counsel were able to resolve the issue on their own. Defendants’ motion papers did not mention whether any efforts were undertaken to resolve the collateral source issue. Further, defendants sought no relief with respect to the award of loss of earnings and did not request a hearing. Under the circumstances, defendants failed to inform the court that such issue had not been resolved and, by failing to challenge the award for loss of earnings or otherwise seek a hearing, did not adequately preserve that issue for appellate review (see, CPLR 4406). (Appeal from Order and Judgment of Supreme Court, Onondaga County, Wells, J. — Negligence.) Present — Doerr, J. P., Boomer, Pine, Balio and Davis, JJ.