LaMENDOLA v. NEW YORK STATE THRUWAY AUTHORITY 93133 (2006)

Claimants commenced this action seeking damages following an accident on the New York State Thruway in which the parents and siblings of claimants Paul LaMendola, Jr. (Paul Jr.), and Lauren LaMendola were killed.   Following a bifurcated trial on liability and damages, claimants appeal and defendant cross-appeals from a judgment awarding Paul Jr. $850,000 and awarding Lauren $766,700.   Contrary to the contention of claimants, the $666,700 awarded to Lauren for her emotional injury owing to being in the zone of danger (see generally Bovsun v. Sanperi, 61 N.Y.2d 219, 223-224, 228, 473 N.Y.S.2d 357, 461 N.E.2d 843) does not “deviate[ ] materially from what would be reasonable compensation” (CPLR 5501[c];  see Spinrad v. Gasser, 235 A.D.2d 687, 687-688, 652 N.Y.S.2d 156;  Hass v. Manhattan & Bronx Surface Tr. Operating Auth., 204 A.D.2d 208, 208-209, 612 N.Y.S.2d 134, lv. denied 84 N.Y.2d 811, 622 N.Y.S.2d 914, 647 N.E.2d 120).   Contrary to the further contention of claimants, we conclude that the Court of Claims properly determined that claimants are not entitled to a lesser burden of proof under Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744 in attempting to prove their claim for pre-impact terror damages.   In any event, the court's finding that the decedents did not suffer pre-impact terror is based on a fair interpretation of the evidence (see Garofalo v. State of New York, 17 A.D.3d 1109, 1110, 794 N.Y.S.2d 269, lv. denied 5 N.Y.3d 707, 801 N.Y.S.2d 800, 835 N.E.2d 660;   Supensky v. State of New York, 2 A.D.3d 1436, 1437, 770 N.Y.S.2d 547;   Farace v. State of New York, 266 A.D.2d 870, 698 N.Y.S.2d 376).   Likewise, the court's findings that defendant's decision not to repave the passing lane where the accident occurred was based on an inadequate and unreasonable survey and that defendant's failure to maintain the highway in a reasonably safe condition was a proximate cause of the accident are based on fair interpretations of the evidence (see Garofalo, 17 A.D.3d at 1110, 794 N.Y.S.2d 269;  Supensky, 2 A.D.3d at 1437, 770 N.Y.S.2d 547;  Farace, 266 A.D.2d 870, 698 N.Y.S.2d 376).   We therefore leave undisturbed the court's determination on liability.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: