Konfidan v FF Taxi, Inc.

Konfidan v FF Taxi, Inc. 2012 NY Slip Op 03539 Decided on May 3, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 3, 2012
Tom, J.P., Andrias, DeGrasse, Richter, Román, JJ. 7558-
20932/06 7559

[*1]Lari Konfidan, Plaintiff-Appellant,

v

FF Taxi, Inc., et al., Defendants-Respondents.




Hogan & Cassell, LLP, Jericho (Michael D. Cassell of
counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for respondents.

Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered on or about August 10, 2010, which, insofar as appealed from as limited by the briefs, granted defendants' motion to set aside the jury verdict awarding plaintiff $400,000 in future pain and suffering to the extent of setting the matter down for a new trial on damages "unless the parties stipulate" to an award of $250,000 for future pain and suffering, unanimously modified, on the law, to the extent of substituting "unless plaintiff stipulates" to the reduced award for "unless the parties stipulate," and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered on or about October 21, 2010, which, upon reargument, adhered to the prior determination, unanimously dismissed, without costs, as academic.

Plaintiff sustained injuries in a motor vehicle accident, which included two labral tears in his right shoulder, which required surgery, and months of physical therapy, both before and after the surgery. At the time of trial, the 33-year-old plaintiff suffered from pain on a daily basis, which varied in degree, and still needed treatment for his shoulder. Under the circumstances presented, we find that trial court appropriately found that the jury's award of $400,000 for future pain and suffering was excessive and that the amount of $250,000 constituted reasonable compensation for the injuries sustained (see e.g. DeSimone v Royal GM, Inc., 49 AD3d 490 [2008], lv dismissed in part and denied in part, 11 NY3d 862 [2008]; Elescano v Eighth—19th Co., LLC, 17 AD3d 250 [2005]; ). [*2]

However, we modify to the extent indicated because the only party required to stipulate to the reduced award was plaintiff, as the nonmovant (see O'Connor v Papertsian, 309 NY 465, 471 [1956]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 3, 2012

CLERK