Zeigler v. Neely

220 A.D.2d 345, 633 N.Y.S.2d 121, 1995 N.Y. App. Div. LEXIS 10459

Opinion

—Judgment, Supreme Court, New York County (Harold Tompkins, J.), entered November 23, 1994, which, after a jury trial, inter alia, awarded the infant plaintiff the sum of $275,000 and his natural guardian the sum of $12,500, and bringing up for review an order of the same court (Robert Lippmann, J.), entered on or about March 9, 1994, which set aside a jury verdict finding both parties equally liable and awarding no damages, and directed a new trial on the issue of damages only, unanimously modified, on the law and the facts, to the extent of vacating the award of damages to the natural guardian, and otherwise affirmed, without costs.

The trial court properly set aside the jury verdict in the first trial (CPLR 4404 [a]) and ordered a new trial on the issue of damages only. A review of the record of that trial leads us to conclude that the findings of liability and apportionment of fault were amply supported by the record and were not infected by the jury’s failure to award damages in the face of the uncontroverted testimony of plaintiffs’ medical expert (Figliomeni v Board of Educ., 38 NY2d 178).

With respect to the second trial, we find the court erred in-submitting the infant plaintiff’s natural guardian’s loss of services claim to the jury since the parties had previously entered into a stipulation in open court withdrawing said cause of action, and further, there has been no evidence to warrant the award of such damages. Concur—Ellerin, J. P., Rubin, Kupferman, Williams and Mazzarelli, JJ.