GARCIA v. FERNANDEZ (2018)

DECISION & ORDER

ORDERED that the order is reversed insofar as appealed from, on the law, and that branch of the defendants' motion which was to set aside the verdict as against the weight of the evidence is denied;  and it is further,

ORDERED that the order is affirmed insofar as cross-appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

On October 1, 2012, the plaintiff, Arianna Garcia, was injured when a vehicle she was operating collided with a vehicle owned by the defendant Norberto Gonzalez and operated by the defendant Juan Fernandez.  The plaintiff was 31 years old at the time of the accident.  This action ensued, and the plaintiff was awarded summary judgment on the issue of liability.

At the damages trial, the plaintiff submitted the testimony of an orthopedic surgeon who testified that an MRI of the plaintiff's left wrist revealed a nondisplaced fracture of the second metacarpal.  The orthopedic surgeon further testified that an MRI of the plaintiff's cervical spine revealed herniations at C3–4 and C5–6, and that these herniations were causing pain, weakness, and tingling in the plaintiff's left hand.  The orthopedic surgeon testified that the plaintiff's condition was “likely not to improve over time.”  The plaintiff testified that, after the accident, she felt constant tingling from her shoulders all the way down to her hands.  She testified that, at the time of trial, she still experienced pain for weeks at a time.

The jury found in favor of the plaintiff, and awarded her $150,000 for past pain and suffering, and $150,000 for future pain and suffering over 46 years.  A judgment was entered in favor of the plaintiff and against the defendants in the principal sum of $300,000.

The defendants then moved to set aside the pain and suffering awards as contrary to the weight of the evidence.  In an order dated February 25, 2016, the Supreme Court granted the defendants' motion to the extent of ordering a new trial on damages unless the parties stipulated to reduce the award of damages for past pain and suffering from $150,000 to $50,000, and to reduce the award of damages for future pain and suffering from $150,000 to $75,000.  The plaintiff appeals and the defendants cross-appeal.

We disagree with the Supreme Court's determination granting the defendants' motion to set aside the pain and suffering awards to the extent of ordering a new trial on the issue of damages unless the parties stipulated to reduce the awards of damages for past and future pain and suffering.  The awards did not deviate materially from what would be considered reasonable compensation (see Turuseta v. Wyassup–Laurel Glen Corp., 91 A.D.3d 632, 634, 937 N.Y.S.2d 240;  cf. Perone v. City of New York, 86 A.D.3d 600, 601, 927 N.Y.S.2d 379;  see generally CPLR 5501[c];  Kayes v. Liberati, 104 A.D.3d 739, 741, 960 N.Y.S.2d 499).

The plaintiff's remaining contention is academic in view of the foregoing.

SCHEINKMAN, P.J., DILLON, COHEN and CHRISTOPHER, JJ., concur.