BERMINGHAM v. 11 (2018)

Order, Supreme Court, New York County (Margaret A. Chan, J.), entered January 17, 2017, which granted defendants Atlantic Concrete Cutting, Bovis Lend Lease LMB, Inc., and Port Authority of New York and New Jersey's motion to set aside the jury verdict awarding plaintiff $100,000 for past pain and suffering, $200,000 for future pain and suffering, $225,000 for past lost earnings, and $1,300,000 for future lost earnings, and directed a new trial on liability and damages unless the parties stipulated to reduce the awards to $50,000 for past pain and suffering, $100,000 for future pain and suffering, and $595,000 for past and future lost earnings, unanimously modified, on the law and the facts, to deny the motion insofar as addressed to the verdict as to liability, the liability verdict reinstated, and to direct that there be a new trial solely on the issue of damages unless the parties stipulate, within 30 days of the date hereof, to accept awards of $100,000 for past pain and suffering, $100,000 for future pain and suffering, and $700,000 for past and future lost earnings, and otherwise affirmed, without costs.

Because defendants did not request a mistrial before the jury rendered its verdict, their post-verdict CPLR 4404(a) motion for an order setting aside the verdict and ordering a new trial, on the ground that the cumulative misconduct of plaintiff's counsel likely affected the verdict, should have been denied (see Virgo v. Bonavilla, 49 N.Y.2d 982, 984, 429 N.Y.S.2d 165, 406 N.E.2d 1059 [1980];  Bertram v. Columbia Presbyt./N.Y. Presbyt. Hosp., 126 A.D.3d 473, 2 N.Y.S.3d 790 [1st Dept. 2015], lv denied 26 N.Y.3d 905, 17 N.Y.S.3d 86, 38 N.E.3d 832 [2015];  Selzer v. New York City Tr. Auth., 100 A.D.3d 157, 162, 952 N.Y.S.2d 26 [1st Dept. 2012];  Boyd v. Manhattan & Bronx Surface Tr. Operating Auth., 79 A.D.3d 412, 413, 912 N.Y.S.2d 196 [1st Dept. 2010] ).  While we do not condone the misconduct revealed by the present record, this is not the rare case in which the misconduct of counsel for the prevailing party was so wrongful and pervasive as to constitute a fundamental error and a gross injustice warranting the exercise of the trial court's discretionary power under CPLR 4404(a) to set aside a verdict in the interest of justice, in spite of the aggrieved party's failure to make a timely mistrial motion (see Boyd, 79 A.D.3d at 413, 912 N.Y.S.2d 196;  cf. Smith v. Rudolph, 151 A.D.3d 58, 51 N.Y.S.3d 507 [1st Dept. 2017];  Heller v. Louis Provenzano, Inc., 257 A.D.2d 378, 379, 683 N.Y.S.2d 92 [1st Dept. 1999] ).

With respect to damages, we modify to direct that there be a new trial solely on the issue of damages unless the parties stipulate to the awards, as indicated, since the noted awards deviated materially from what would be reasonable compensation (see CPLR 5501[c] ).