Zayas v. Lux Service Corp.

47 A.D.2d 867, 368 N.Y.S.2d 1015

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 3, 1975
• Status: Published

Opinion

Judgment, Supreme Court, New York County, entered July 2, 1974, unanimously reversed, on the law and on the facts, and vacated, and a new trial granted solely on the issue of damages, with $60 costs and disbursements of this appeal to abide the event, unless plaintiff-respondent Zayas, within 20 days after service upon her by defendants-appellants of a copy of the order entered hereon, with notice of entry, serves and files in the office of the clerk of the trial court a written stipulation consenting to reduce the verdict to $250,000 and to the entry of an amended judgment in accordance therewith. If plaintiff consents to such reduction, the judgment as so amended and reduced is affirmed, without costs and without disbursements. On the record before us, the jury verdict in excess of the amount indicated was unwarranted. Judgment, Supreme Court, Bronx County, entered July 1, 1974, unanimously modified, on the law, to the extent of reducing the jury verdict to $100,000 and otherwise affirmed, without costs and without disbursements. The court’s granting of plaintiff’s post verdict motion to increase his ad damnum clause to conform to such verdict (after denying applications for similar relief at the commencement of the trial and at the end of plaintiff’s case) was an improvident exercise of discretion. (Wyman v Morone, 33 AD2d 168; Natale v Pepsi-Cola Co., 7 AD2d 282.) Judgment, Supreme Court, Bronx County, entered on August 9, 1974, unanimously affirmed. Respondents Orono and Claudio shall recover of appellants one bill of $60 costs and disbursements of this appeal. Concur — Markewich, J. P., Murphy, Lupiano, Tilzer and Lynch, JJ.