Hernandez v Metropolitan Tr. Auth.

Hernandez v Metropolitan Tr. Auth. 2012 NY Slip Op 09030 Decided on December 26, 2012 Appellate Division, Second 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 December 26, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
PETER B. SKELOS, J.P.
DANIEL D. ANGIOLILLO
THOMAS A. DICKERSON
L. PRISCILLA HALL, JJ.
2011-01481
(Index No. 4973/06)

[*1]Silvia Hernandez, respondent,

v

Metropolitan Transit Authority, et al., appellants.




Smith Mazure Director Wilkins, New York, N.Y. (Joel M. Simon
of counsel), for appellants.
Gorayeb & Associates, P.C., New York, N.Y. (Stuart
Pobereskin of counsel), for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from a judgment of the Supreme Court, Kings County (Miller, J.), entered January 11, 2011, which, upon a jury verdict awarding the plaintiff damages in the principal sum of $250,000 for past pain and suffering, and upon the denial of the defendants' motion pursuant to CPLR 4404(a), inter alia, to set aside the verdict as excessive, is in favor of the plaintiff and against them in the principal sum of $250,000.

ORDERED that the judgment is reversed, on the facts and in the exercise of discretion, with costs, and the matter is remitted to the Supreme Court, Kings County, for a new trial on the issue of damages for past pain and suffering only, unless within 30 days after service upon the plaintiff of a copy of this decision and order, the plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting to reduce the amount of damages for past pain and suffering from the principal sum of $250,000 to the principal sum of $100,000, and to the entry of an appropriate amended judgment; in the event that the plaintiff so stipulates, then the judgment, as so reduced and amended, is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff was injured when she was struck by a piece of construction debris that fell from an elevated subway track. The plaintiff sustained an injury to her left shoulder as a result of that incident. After a jury trial on the issue of damages only, the jury awarded damages for past pain and suffering in the principal sum of $250,000. The jury did not award any damages for future pain and suffering.

Under the circumstances of this case, the award of damages deviated materially from what would be reasonable compensation, to the extent indicated herein (see CPLR 5501[c]; see also Perone v City of New York, 86 AD3d 600, 601; Miller v Tacopina, 34 AD3d 254, 255).
SKELOS, J.P., ANGIOLILLO, DICKERSON and HALL, JJ., concur. [*2]

ENTER:

Aprilanne Agostino

Clerk of the Court