MORALES v. Augustine F. Tetro, et al., Defendants-Respondents-Appellants.

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

Elizabeth MORALES, Plaintiff-Appellant-Respondent, v. Robert R. HERON, Defendant, Augustine F. Tetro, et al., Defendants-Respondents-Appellants.

Decided: May 12, 1998

Before ROSENBERGER, J.P., and RUBIN, WILLIAMS, TOM and SAXE, JJ. Stephen J. Gaba, for Plaintiff-Appellant-Respondent. Brian W. McElhenny, for Defendants-Respondents-Appellants.

Order, Supreme Court, Bronx County (Lottie Wilkins, J.), entered on or about October 16, 1996, denying that part of defendants-appellants' motion seeking to have the verdict against them set aside and the complaint dismissed, but granting said motion to the extent of remanding for a new trial on the issue of damages only unless plaintiff stipulated to reduce the jury's award to plaintiff for past and future pain and suffering from $650,000 to $80,000, unanimously modified, on the facts, to remand the matter for a new trial on the issue of damages relating to past and future pain and suffering only, and otherwise affirmed, without costs, unless, within 30 days of the date of this order, plaintiff stipulates to reduce the jury award for pain and suffering to $300,000 ($100,000 for past and $200,000 for future pain and suffering), which award is to be reduced by $100,000, as found by the jury, by reason of plaintiff's failure to wear an available seat belt, and to the entry of judgment in accordance therewith.

Plaintiff, while a passenger in defendant Robert Heron's car, suffered two fractured ribs, a bruised kidney and bladder, and facial scarring requiring 50 stitches, when Heron's car crossed over into the opposite lane of traffic and collided head on with defendant Tetro's van.   At the time of the accident, plaintiff was not wearing a seat belt even though one was available.   We agree with the trial court that, contrary to defendant-appellants' argument, the jury's determination that Tetro was 25% responsible for the accident was not contrary to the weight of the evidence;  the evidence evidently credited by the jury indicated that Tetro had had a chance to avoid Heron's vehicle.   However, given the injuries sustained by plaintiff, we find the trial court's reduction of the damages awarded by the jury for pain and suffering to have been excessive and to lack support in the record.