NICOLE MAURER PLAINTIFF RESPONDENT APPELLANT v. APPEAL NO (2010)

MEMORANDUM AND ORDER

Appeal and cross appeal from a judgment of the Supreme Court, Erie County (Joseph G. Makowski, J.), entered June 20, 2008 in a personal injury action.   The judgment awarded plaintiff money damages against defendant upon a jury verdict.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reducing the collateral source offset to $15,391.35 and increasing the award for past damages to $113,608.65 and as modified the judgment is affirmed without costs.

We note at the outset that the contentions of Tops concerning Supreme Court's charge on premises liability are unpreserved for our review inasmuch as Tops failed to raise those specific objections at trial (see Fitzpatrick & Weller, Inc. v Miller, 21 AD3d 1374, 1375;  Donaldson v. County of Erie, 209 A.D.2d 947, 948).  “Where, as here, the charge is not fundamentally flawed, [Tops'] failure to object to the charge at trial and before the jury retire[d] precludes [our] review of [those] contention[s]” (Fitzpatrick, 21 AD3d at 1375 [internal quotation marks omitted] ).   Tops further contends that the court erred in refusing to add a question to the verdict sheet.   Even assuming, arguendo, that Tops preserved that contention for our review (cf.  Brown v. Dragoon, 11 AD3d 834, 835, lv denied 4 NY3d 710;  Cavallaro v. Somaskanda [appeal No. 2], 280 A.D.2d 1002, 1003), we conclude that any alleged error in the verdict sheet does not warrant reversal inasmuch as “no basis exists to warrant a finding of juror confusion or inconsistency in the verdict” (Szeztaye v. LaVacca, 179 A.D.2d 555, 556;  see Williams v. Brosnahan, 295 A.D.2d 971, 974).   The propriety of questions on a verdict sheet “must be examined in the context of the court's charge” (Szeztaye, 179 A.D.2d at 555) and, in this case, the court's charge properly set forth the three necessary elements of premises liability.

Tops also failed to preserve for our review its contention that the jury verdict is inconsistent inasmuch as Tops failed to object to the verdict on that ground before the jury was discharged (see Kunsman v. Baroody, 60 AD3d 1369, 1370;  Everding v. Bombard, 272 A.D.2d 937, 938) and, in any event, the challenged portions of the verdict are “supported by a fair interpretation of the evidence and [are] not inconsistent” (Howell v. Cecilia, 45 AD3d 1406, 1407).   Contrary to the further contention of Tops, there is no evidence in the record of an impermissible jury compromise.

“ ‘charged with constructive notice of each specific reoccurrence of the condition’ “ (Chrisler v. Spencer, 31 AD3d 1124, 1125;  see Erikson v. J.I.B. Realty Corp., 12 AD3d 344, 345;  see generally Chianese v. Miller, 98 N.Y.2d 270, 278).

We agree with Tops, however, that the jury erred in indicating on the verdict sheet that the award of $360,000 for future medical expenses was “intended to provide compensation” for a period of 15 years.   Rather, we conclude that the future medical expenses awarded provides compensation for the remainder of plaintiff's lifetime.   With that distinction, we conclude that the jury's award of $360,000 for future medical expenses should not be disturbed.   As plaintiff correctly contends, she was 32 years old at the time of trial, and the uncontroverted medical proof established that her cervical spine injury is permanent and will require a lifetime of medical treatment and, ultimately, cervical fusion surgery.

We have considered the remaining contentions of the parties and conclude that they are without merit.

Patricia L. Morgan

Clerk of the Court