McEWEN v. AKRON FIRE COMPANY INC (1998)

Plaintiff commenced this action against defendant seeking damages for personal injuries she sustained when the automobile she was driving was struck by defendant's ambulance.   The jury awarded plaintiff $13,000 for past lost earnings and $175,000 for past pain and suffering, but reduced the total award to $75,200 because of plaintiff's failure to wear a seatbelt.   There was no award for future damages.

 Plaintiff contends that the failure to award damages for future pain and suffering, where there is clear evidence of permanency, is against the weight of the evidence, inconsistent with the rest of the verdict, and the result of a compromise.   Supreme Court properly denied plaintiff's CPLR 4404(a) motion to set aside the verdict (see, Texido v. Margarucci, 229 A.D.2d 944, 645 N.Y.S.2d 235).   Whether the injuries sustained by plaintiff were causally related to the accident or to a preexisting condition was sharply disputed, and the jury's verdict is based upon a fair interpretation of the evidence (see, Matter of Siegel v. County of Monroe, 207 A.D.2d 959, 617 N.Y.S.2d 669).   By not raising an objection to the verdict before the jury was discharged, plaintiff failed to preserve for our review her contention that the verdict is inconsistent (see, Barry v. Manglass, 55 N.Y.2d 803, 806, 447 N.Y.S.2d 423, 432 N.E.2d 125, rearg. denied 55 N.Y.2d 1039, 449 N.Y.S.2d 1030, 434 N.E.2d 1081;  Grassi v. Kamalian, 226 A.D.2d 344, 640 N.Y.S.2d 760).   Further, we conclude that the jury's failure to award damages for future pain and suffering is neither inconsistent with the rest of the verdict (cf., Texido v. Margarucci, supra ) nor the result of a compromise (cf., Patrick v. New York Bus Serv., 189 A.D.2d 611, 592 N.Y.S.2d 311).

Order unanimously affirmed without costs.

MEMORANDUM: