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

David C. BRIGHT, et al., Plaintiffs-Respondents, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant-Appellant.

Decided: October 30, 2001

WILLIAMS, J.P., ANDRIAS, WALLACH, LERNER and MARLOW, JJ. James L. Forde, for Plaintiffs-Respondents. David Samel, for Defendant-Appellant.

Order, Supreme Court, New York County (William O'Brien, III, J.), entered February 13, 2000, which granted plaintiffs' motion for a new trial on damages for past and future pain and suffering unless defendant stipulates to an award of $360,000 for past pain and suffering and $300,000 for future pain and suffering, unanimously affirmed, without costs.

The trial court's decision to grant a new trial constituted a provident exercise of its discretion (see, Yalkut v. City of New York, 162 A.D.2d 185, 188, 557 N.Y.S.2d 3;  Annunziata v. Colasanti, 126 A.D.2d 75, 80, 512 N.Y.S.2d 381).   Given the ample and virtually uncontroverted evidence adduced by plaintiff with respect to damages, the jury's low award for past pain and suffering and the failure to award any damages for future pain and suffering could not have been premised upon any fair interpretation of the evidence (see, Silver v. Tops Mkts., 273 A.D.2d 887, 710 N.Y.S.2d 264).   The damages amounts specified by the trial court do not deviate materially from what is reasonable compensation under these circumstances (see, CPLR 5501[c] ).  Even if the issue of lost past wages were properly raised on this appeal, we would find no reason to disturb that award.

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