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

Minnette F. BEECHAM, Plaintiff-Respondent, v. NEW YORK CITY TRANSIT AUTHORITY, et al., Defendants-Appellants.

Decided: September 16, 2008

GONZALEZ, J.P., BUCKLEY, MOSKOWITZ, RENWICK, DeGRASSE, JJ. Wallace D. Gossett, Brooklyn (Anita Isola of counsel), for appellants. Steven Wildstein, P.C., Great Neck (Michael K. Maiolica of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Lucy Billings, J.), entered on or about April 25, 2007, in plaintiff's favor, unanimously modified, on the facts, to the extent of directing a new trial on the issue of damages for past pain and suffering unless plaintiff stipulates to a reduction of the verdict from $500,000 to $300,000, and otherwise affirmed, without costs.

The trial court correctly refused to admit into evidence the history portion of plaintiff's Emergency Room record, which was offered to prove the truth of the facts asserted.   This entry was not admissible as a business record because it was not germane to plaintiff's diagnosis or treatment (Williams v. Alexander, 309 N.Y. 283, 129 N.E.2d 417 [1955];  Gunn v. City of New York, 104 A.D.2d 848, 849, 480 N.Y.S.2d 365 [1984] ).

The jury's apportionment of liability in plaintiff's favor was based on a fair interpretation of the evidence (see Nicastro v. Park, 113 A.D.2d 129, 495 N.Y.S.2d 184 [1985] ).   However, the award for past pain and suffering materially deviated from reasonable compensation under the circumstances to the extent indicated (CPLR 5501[c] ).