SMITH v. Mark Roger Burns, M.D., Defendant.

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

Kevin SMITH, Plaintiff-Appellant, v. Dr. Sophia AU, et al., Defendants-Respondents, Mark Roger Burns, M.D., Defendant.

Decided: July 28, 2005

FRIEDMAN, J.P., NARDELLI, GONZALEZ, CATTERSON, JJ. Kramer, Dillof, Livingston & Moore, New York (Matthew Gaier of counsel), for appellant. Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success (Steven J. Ahmuty, Jr., Timothy R. Capowski of counsel), for respondents.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered November 1, 2004, which, in an action for medical malpractice, granted defendants' motion to set aside the award for damages to the extent of directing a new trial on the issues of damages unless plaintiff stipulated to reduce the jury's awards for future pain and suffering from $5,000,000 to $3,000,000, for past lost earnings from $202,057 to $150,000, for future loss of earnings from $2,011,955 to $1,150,000, for future home health aid from $7,000,000 to $4,000,000, for future medical care from $165,000 to $100,000, for future physical/occupational therapy from $245,000 to $90,000, for speech therapy from $40,000 to $25,000, and vacating the jury's award of $365,000 for psychological therapy, unanimously modified, on the facts, to reinstate the jury's damage awards for future pain and suffering, past lost earnings, future loss of earnings, future medical care, future physical/occupational therapy, speech therapy and psychological therapy, and to increase the conditional award for future home health aid to $4,500,000, and otherwise affirmed, without costs, and the matter remanded for a new trial solely as to damages for future home health aid, unless plaintiff, within 30 days of service of a copy of this order with notice of entry, stipulates to $4,500,000 for the award for future home health aid and to entry of an amended judgment in accordance therewith.

In a prior appeal in this case, this Court reinstated the jury's verdict on liability and damages in the amount of $16,315,000 and remanded the matter for further proceedings on the claim of the excessiveness of the damage awards (8 A.D.3d 1, 777 N.Y.S.2d 298 [2004] ).   The trial court's subsequent reduction of damages is excessive to the extent indicated (CPLR 5501[c] ).