GUERRERO v. DJUKO REALTY INC

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

Mariel GUERRERO, etc., Respondent, et al., Plaintiffs, v. DJUKO REALTY, INC., et al., Appellants.

Decided: December 23, 2002

MYRIAM J. ALTMAN, J.P., NANCY E. SMITH, HOWARD MILLER and THOMAS A. ADAMS, JJ. Alexander J. Wulwick, New York, NY, for appellants. Fitzgerald & Fitzgerald, Yonkers, NY, (John E. Fitzgerald, John M. Daly, Deborah Pearl Henkin, and Eugene S.R. Pagano of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendants appeal from a judgment of the Supreme Court, Kings County (Cutrona, J.), entered June 5, 2001, which, upon their appearance at an inquest on the issues of liability and damages, finding that the plaintiff Mariel Guerrero had sustained damages in the sums of $250,000 for past pain and suffering, $1,000,000 for future pain and suffering, $1,709,858 for future medical care and monitoring, $216,866 for future psychological counseling, $212,040 for future tutoring, and $325,299 for future occupational therapy, is in favor of the plaintiff Mariel Guerrero and against it.

ORDERED that the judgment is modified, on the law, the facts, and as an exercise of discretion, by (1) deleting the provision thereof awarding damages to the plaintiff Mariel Guerrero for future psychological counseling and substituting a provision therefor dismissing that cause of action, and (2) reducing the damages awarded to the plaintiff Mariel Guerrero for past pain and suffering from $250,000 to $100,000, for future pain and suffering from $1,000,000 to $400,000, and for future medical care and monitoring from $1,709,858 to $100,000;  as so modified, the judgment is affirmed, without costs or disbursements.

 The infant plaintiff sustained lead poisoning as a result of her exposure to lead-based paint while living in an apartment owned by the defendant Djuko Realty, Inc., and managed by the defendant Paul Kent. Contrary to the defendants' contention, the Supreme Court properly held the defendant Paul Kent jointly and severally liable for her injuries since, as managing agent, he was in complete and exclusive control of the management and operation of the apartment building (see Cortes v. Riverbridge Realty Co., 227 A.D.2d 430, 431, 642 N.Y.S.2d 692;  Ioannidou v. Kingswood Management Corporation, 203 A.D.2d 248, 249, 610 N.Y.S.2d 277).

 The damage awards for past and future pain and suffering and for future medical care and monitoring were excessive to the extent indicated (see CPLR 5501[c];  Padilla v. Jols Realty Corp., 284 A.D.2d 512, 727 N.Y.S.2d 631;  Hiraldo v. Khan, 267 A.D.2d 205, 699 N.Y.S.2d 456;  Korn v. Levick, 231 A.D.2d 606, 647 N.Y.S.2d 808).   Further, the award of damages for future psychological counseling is speculative, as there was no evidence at the inquest that the infant plaintiff was seeing a psychologist at the time of trial (id.).

The defendants' remaining contentions are without merit.

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