Hanley v New York City Tr. Auth.

[*1] Hanley v New York City Tr. Auth. 2009 NY Slip Op 51024(U) [23 Misc 3d 141(A)] Decided on May 22, 2009 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 22, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2008-6 K C.

Emma Hanley, Appellant, The

against

New York City Transit Authority, Respondent, - and - METROPOLITAN TRANSPORTATION AUTHORITY, MANHATTAN and BRONX SURFACE OPERATING AUTHORITY, Defendants.

Appeal from an order of the Civil Court of the City of New York, Kings County (Delores J. Thomas, J.), dated December 28, 2006. The order, insofar as appealed from, granted a motion by defendant The New York City Transit Authority to set aside the jury verdict pursuant to CPLR 4404 (a) and for a new trial, to the extent of setting aside the verdict of $1 million for past pain and suffering and ordering a new trial as against said defendant on said issue.

Order, insofar as appealed from, affirmed without costs, unless within 30 days after service upon plaintiff of a copy of the order entered hereon, with notice of entry, plaintiff serves and files in the office of the Clerk of the New York City Civil Court, Kings County, a written stipulation consenting to reduce her award for past and future pain and suffering to the sum of $100,000; in the event that plaintiff so stipulates, then the order is reversed without costs and the motion by defendant The New York City Transit Authority to set aside the jury verdict and for a new trial is denied. [*2]

The instant personal injury action arises out of a subway accident that occurred on June 5, 1995. Plaintiff was among the passengers riding on a "J" train which collided with another train on the Williamsburg Bridge. The action was commenced in the Supreme Court and was later transferred to the Civil Court pursuant to CPLR 325 (d). Defendant The New York City Transit Authority (NYCTA) conceded liability for the train accident and a trial was conducted solely on the issue of damages. The jury awarded plaintiff, inter alia, the sum of $1 million for past pain and suffering. The jury determined that plaintiff was not entitled to an award for future pain and suffering. NYCTA subsequently moved pursuant to CPLR 4404 (a) for an order setting aside the verdict and ordering a new trial or, in the alternative, setting aside the award for damages for past pain and suffering and for a new trial on that issue unless plaintiff stipulated to a substantial reduction in damages. The Civil Court granted defendant's motion to the extent of setting aside the jury verdict for past pain and suffering as excessive and directing a new trial as against NYCTA limited to the issue of damages for past and future pain and suffering. Plaintiff appeals and argues that the award of $1 million for past pain and suffering was reasonable.

Upon a review of the record, we find that the portion of the jury's verdict which awarded plaintiff $1 million for past pain and suffering was excessive. Considering the nature and extent of plaintiff's injuries, the award deviated materially from what would be reasonable compensation to the extent that it exceeded the sum of $100,000 for pain and suffering (see CPLR 5501 [c]; Frascarelli v Port Auth. of NY & N.J., 269 AD2d 422 [2000]; Faust v New York City Tr. Auth., 4 Misc 3d 89 [App Term, 2d & 11th Jud Dists 2004]). Accordingly, we affirm the order unless plaintiff consents to reduce her award for pain and suffering to the sum of $100,000.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: May 22, 2009