DONOFRIO v. MONTALBANO (1997)

In an action to recover damages for wrongful death, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Polizzi, J.), dated June 27, 1996, which, upon a jury verdict in favor of the plaintiffs and against the defendant on the issue of damages, granted the defendant's motion pursuant to CPLR 4404(a) to set aside the verdict as to damages on the ground of excessiveness, and granted a new trial on damages unless the plaintiffs stipulated to reduce the verdict as to damages for conscious pain and suffering from $1,500,000 to $100,000 and to reduce the verdict as to damages for pecuniary loss to (1) Vincenzo Donofrio from the sum of $350,000 to the sum of $50,000, and (2) Carmen Donofrio from the sum of $500,000 to the sum of $100,000.

ORDERED that the order is modified, on the law, by deleting therefrom the words “$50,000 for pecuniary loss to Vincenzo Donofrio and $100,000 for pecuniary loss to Carmen Donofrio” and substituting therefor the words “$83,333 for pecuniary loss to Vincenzo Donofrio and $166,667 for pecuniary loss to Carmen Donofrio”;  as so modified, the order is affirmed, without costs or disbursements.

This action arises from a single vehicle accident which occurred when the defendant's son, the driver, lost control of the vehicle, which was traveling at a speed of 70 to 75 miles per hour, while attempting to negotiate a curve on the Cross Island Parkway, and crashed into a tree.   The only eyewitness to testify at trial explained that just before the impact, the car swerved out of its lane, went out of control, and started fishtailing;  then, “it looked like the wheels caught the curb and the car just shot like a slingshot right * * * past the overpass”, and hit the tree within a second.   The witness estimated that seven to ten seconds elapsed between the time that the car first sped past him and its collision with the tree.   While the driver apparently lost consciousness upon impact, the passenger, the decedent herein, was heard moaning and groaning shortly after the impact, and was declared dead within 20 to 30 minutes.

 The trial court properly exercised its discretion in conditionally reducing the jury award for conscious pain and suffering, which included preimpact terror.   As the court found, the duration within which the decedent could have experienced any preimpact terror was limited to only several seconds, which warrants, at best, a minimal award (see, Shu-Tao Lin v. McDonnell Douglas Corp., 2d Cir., 742 F.2d 45;  cf., Shatkin v. McDonnell Douglas Corp., 2d Cir., 727 F.2d 202).   Moreover, while the decedent did suffer severe and massive injuries, his degree of consciousness is uncertain, and any period of consciousness was limited in duration, thus warranting the conditional reduction of the award for conscious pain and suffering, which materially deviated from what would otherwise be reasonable compensation (see, CPLR 5501[c];  see, Portaro v. Gerber, 217 A.D.2d 539, 629 N.Y.S.2d 277;   Higgins v. State of New York, 192 A.D.2d 821, 596 N.Y.S.2d 479;  Dontas v. City of New York, 183 A.D.2d 868, 584 N.Y.S.2d 134;  Tenczar v. Milligan, 47 A.D.2d 773, 365 N.Y.S.2d 272).

 Finally, while the 18-year-old decedent, who worked in the family business, lived with his parents, and cared for his younger sibling, was described as a wonderful, loving son who was especially helpful around the home, the trial court properly concluded that the jury award for pecuniary loss was excessive.   We find, however, that the amount of damages should have been reduced only to the extent indicated above (see, Costarelli v. Gurino, 170 A.D.2d 431, 566 N.Y.S.2d 522).

MEMORANDUM BY THE COURT.