RODD v. (and a second third-party action). (2000)

In an action to recover damages for personal injuries and wrongful death, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Oshrin, J.), dated December 29, 1998, which, upon a jury verdict finding, inter alia, the defendant Southside Fire and Safety Equipment Distributors 38% at fault, the third-party defendant Coram Fire District 34% at fault, and the plaintiff's decedent 7% at fault in the happening of the accident, and awarding, inter alia, damages in the sum of $1,000,000 for pain and suffering, granted the separate motions of the defendant Southshore Fire and Safety Equipment Distributors, Inc. and the third-party defendant Coram Fire District pursuant to CPLR 4404 to set aside the verdict as to damages for conscious pain and suffering, and granted a new trial on that issue only unless the plaintiff stipulated to reduce the verdict as to damages for conscious pain and suffering from $1,000,000 to $300,000.

ORDERED that the order is affirmed, with one bill of costs.

The plaintiff's decedent sustained a wound to the left side of his chest when an oxygen tank which he was refilling exploded.   Upon his admission to the hospital no more than 30 minutes after he sustained his injury, the decedent's level of consciousness was listed as “unresponsive”.   According to hospital records, he remained unresponsive until he expired approximately four hours after the accident.

Although the decedent suffered severe and massive injuries, any period of consciousness was limited in duration.   The amount of damages awarded by the jury deviated materially from what would otherwise be reasonable compensation (see, CPLR 5501[c];  Donofrio v. Montalbano, 240 A.D.2d 617, 659 N.Y.S.2d 484;  Portaro v. Gerber, 217 A.D.2d 539, 629 N.Y.S.2d 277).

MEMORANDUM BY THE COURT.