CAMACHO v. ROCHESTER CITY SCHOOL DISTRICT

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

Lisa CAMACHO, Individually and as Parent and Natural Guardian of Karissa V., an Infant, Plaintiff-Appellant, v. ROCHESTER CITY SCHOOL DISTRICT and Laidlaw Transit, Inc., Defendants-Respondents.

Decided: July 01, 2005

PRESENT:  HURLBUTT, J.P., SCUDDER, MARTOCHE, PINE, AND LAWTON, JJ. Redmond & Parrinello, LLP, Rochester (John R. Parrinello of Counsel), for Plaintiff-Appellant. Chamberlain D'Amanda, Rochester (Henry R. Ippolito of Counsel), for Defendants-Respondents.

Plaintiff commenced this action, individually and on behalf of her daughter, seeking damages for injuries sustained by her daughter as a result of being sexually assaulted by another student while a passenger on a school bus operated by defendant Laidlaw Transit, Inc. We agree with plaintiff that Supreme Court erred in denying that part of her posttrial motion seeking to set aside the jury verdict insofar as the jury awarded damages in the amount of $20,000 for the future pain and suffering of her daughter for a period of 64 years.   As plaintiff correctly contends, that award deviates materially from what would be reasonable compensation (see CPLR 5501[c] ).  In our view, an award of $75,000 for the future pain and suffering of plaintiff's daughter is the minimum amount that the jury could have found as a matter of law based on the evidence at trial (see e.g. Shante D. v. City of New York, 190 A.D.2d 356, 363, 598 N.Y.S.2d 475, affd. 83 N.Y.2d 948, 615 N.Y.S.2d 317, 638 N.E.2d 962;  Laurie Marie M. v. Jeffrey T.M., 159 A.D.2d 52, 57, 559 N.Y.S.2d 336, affd. 77 N.Y.2d 981, 571 N.Y.S.2d 907, 575 N.E.2d 393;  Garcia v. City of New York, 222 A.D.2d 192, 193, 646 N.Y.S.2d 508, lv. denied 89 N.Y.2d 808, 655 N.Y.S.2d 888, 678 N.E.2d 501).   We therefore modify the order accordingly.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion in part and setting aside the award of damages for future pain and suffering and as modified the order is affirmed without costs, and a new trial is granted on that element of damages only unless defendants, within 20 days of service of a copy of the order of this Court with notice of entry, stipulate to increase the award of damages for future pain and suffering to $75,000.

MEMORANDUM: