MARCHINEK v. STATE (2006)

Supreme Court, Appellate Division, Second Department, New York.

George D. MARCHINEK, appellant, v. STATE of New York, respondent.

Decided: October 24, 2006

HOWARD MILLER, J.P., STEPHEN G. CRANE, FRED T. SANTUCCI, and DANIEL F. LUCIANO, JJ.

Lippman Krasnow & Kelton, LLP, New York, N.Y. (David Verschell of counsel), for appellant. Eliot Spitzer, Attorney-General, Albany, N.Y. (Patrick Barnett-Mulligan and Jennifer Grace Miller of counsel), for respondent.

In a claim to recover damages for personal injuries, the claimant appeals (1) from a decision of the Court of Claims (Marin, J.) dated March 28, 2005, and (2), on the ground of inadequacy, from a judgment of the same court dated May 5, 2005, which, upon the decision and after a nonjury trial on the issue of damages, is in favor of the claimant and against the defendant in the principal sum of only $294,352.

ORDERED that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718); and it is further,

ORDERED that the judgment is modified, on the law and the facts, by increasing the award to the principal sum of $419,352; as so modified, the judgment is affirmed, without costs or disbursements.

We find, on this record, that the award for past pain and suffering should have been for 4 years rather than 1 1/212 years.

The claimant's remaining contentions are without merit.

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