Lora v Francis

[*1] Lora v Francis 2006 NY Slip Op 50813(U) [11 Misc 3d 145(A)] Decided on May 1, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 1, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., RIOS and BELEN, JJ
2005-911 K C.

Ramon Lora, Respondent,

against

Sadie Francis and PRESTON L. GATEWOOD, Appellants.

Appeal from a post-trial order of the Civil Court, Kings County (Peter Paul Sweeney, J.), entered April 26, 2005. The order, insofar as appealed from as limited by the brief, granted plaintiff's motion for a new trial limited to the issue of damages for future pain and suffering.

Order, insofar as appealed from, affirmed without costs.

In this negligence action for personal injuries sustained in an automobile accident, the jury found that plaintiff only satisfied the no-fault threshold under the 90/180 category of Insurance Law § 5102 (d), and awarded plaintiff $50,000 for past pain and suffering and $135,000 for future pain and suffering. The plaintiff's attorney requested that the court recharge the jury based on his mistaken belief that an award for future pain and suffering was not permissible unless the jury found that plaintiff satisfied one of the other threshold categories of the serious injury statute. The court complied and, as a result, the jury reached the same conclusion as to the threshold issue and deleted the award for future pain and suffering. The plaintiff then made a post-trial motion for a new trial limited to the issue of damages for future pain and suffering which motion was granted by the court. The instant appeal by defendants ensued.

In our opinion, the order should be affirmed. It has been held that a finding that a plaintiff has satisfied the 90/180 day category of the statute permits a recovery for, inter alia, future pain and suffering (Gallagher v Samples, 6 AD3d 659, 660 [2004]; Kelly v Balasco, 226 AD2d 880 [1996]). [*2]

Defendants contend that plaintiff's attorney charted his own course and that the jury verdict following the second charge as requested by plaintiff's attorney should be upheld. However, we find that the exercise of discretion by the court below in granting plaintiff's motion to vacate the verdict and in ordering a new trial with respect to future [*3]
pain and suffering was warranted under the circumstances, especially in view of the jury's initial determination that plaintiff was entitled to $135,000 for future pain and suffering (see Gallagher v Samples, 6 AD3d 659, supra).

Golia, J.P., Rios and Belen, JJ., concur.
Decision Date: May 1, 2006