Chu v Charles C. Towne & Sons, Inc.

[*1] Chu v Charles C. Towne & Sons, Inc. 2005 NY Slip Op 51810(U) [9 Misc 3d 139(A)] Decided on November 7, 2005 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 7, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT:
HON. WILLIAM J. DAVIS, P.J.,

HON. PHYLLIS GANGEL-JACOB, HON. MARTIN SCHOENFELD, Justices.


Peter Chu, NY County Clerk's No. 570104/04 Plaintiff-Respondent, Calendar No. 04-188/189

against

Charles C. Towne and Sons, Inc. and RICHARD L. JOZEFOWICZ, Defendants-Appellants.

Defendants appeal from a judgment of the Civil Court, Bronx County (Wilma Guzman, J.), entered July 21, 2003, after a nonjury trial, in favor of plaintiff and awarding him damages in the aggregate amount of $1,012,500.

PER CURIAM:

Judgment (Wilma Guzman, J.) entered July 21, 2003 modified to the extent of reducing the aggregate award of damages for past pain and suffering of $525,000 to $250,000, and the award of damages for future pain and suffering of $600,000 to $300,000, for a total award of damages in the amount of $550,000, which is reduced by plaintiff's comparative negligence to $495,000, and as so modified, affirmed, without costs, and the matter is remitted to Civil Court for entry of an amended judgment.

Viewing the evidence in the light most favorable to plaintiff, it was not irrational for the trier of facts to conclude, on the basis of the trial evidence, that plaintiff's head injury was [*2]causally related to the vehicular accident giving rise to this action (see Campbell v City of Elmira, 84 NY2d 505, 510 [1994]; Cohen v Hallmark Cards, Inc., 45 NY2d 493, 499 [1978]). Nor was the court's liability determination against the weight of the evidence since the evidence did not so preponderate in favor of defendants that the verdict could not be reached on any fair interpretation of the evidence (see Lolik v Big V Supermarket, 86 NY2d 744 [1995]).

The awards for past and future pain and suffering for plaintiff's cognitive deficits and related injuries, however, deviate materially from what is reasonable compensation under the circumstances. In analogous cases involving cognitive deficits, reasonable compensation has been found to be comparable to that awarded in this case but only where the claimants were infants or young children with much longer life expectancies (see e.g. Jackson v Mungo One, Inc., 6 AD3d 236 [2004]); Ghaznavi v Ditmas Management Corp., 2 AD3d 579 [2003]; Sampson v New York City Housing Authority, 256 AD2d 19 [1998]). Unlike those claimants, plaintiff, who is 48 years old, is an adult with a shorter life expectancy. Moreover, plaintiff was able to return to work as a cook until his subsequent electrical accident in 1997, and according to his experts, will be able to function independently, albeit with more "difficulty" than "the average person." Under these circumstances, we find that for the cognitive deficits, $150,000 for past pain and suffering, and $300,000 for future pain and suffering are more appropriate awards.Similarly, we find that the award for past pain and suffering with respect to plaintiff's carpal tunnel injury deviates from what would be reasonable compensation, and we reduce that award to $100,000 (see Torres v Westchester Sq. Med. Ctr., 237 AD2d 121 [1997]; Silverstein v Harmonie Club, 173 AD2d 378 [1991]).

We have considered defendants' remaining arguments and find them unavailing.

This constitutes the decision and order of the court.
Decision Date: November 07, 2005