DALZELL v. Town of Stanford, appellant.

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

Richard C. DALZELL, et al., respondents, v. COUNTY OF DUTCHESS, et al., defendants, Town of Stanford, appellant.

Decided: February 22, 1999

DANIEL W. JOY, J.P., GABRIEL M. KRAUSMAN, ANITA R. FLORIO and DANIEL F. LUCIANO, JJ. Conway, Farrell, Curtin & Kelly, P.C., New York, N.Y. (Jonathan Uejio of counsel), and Kerr & Weiss, New Paltz, N.Y., for appellant (one brief filed). Steven M. Melley, Rhinebeck, N.Y., and Qualtere, Graham & Redder, Kingston, N.Y. (Peter C. Graham of counsel), for respondents (one brief filed).

In an action to recover damages for personal injuries, etc., the defendant Town of Stanford appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Dutchess County (Hickman, J.), dated October 20, 1997, as, upon a jury verdict finding it 35% at fault in the happening of an accident, and finding that the plaintiff Richard C. Dalzell sustained damages in the sums of $63,796.05 for medical and dental expenses, $1,000,000 for past pain and suffering, and $1,000,000 for future pain and suffering, and that the plaintiff Barbara B. Dalzell sustained damages in the sums of $225,000 for past loss of services and $225,000 for future loss of services, is in favor of the plaintiffs and against it in the principal sum of $873,341.

ORDERED that the judgment is reversed insofar as appealed from, as a matter of discretion, and a new trial is granted on the issue of the plaintiffs' damages for past and future pain and suffering and for past and future loss of services, unless within 30 days after service upon them of a copy of this decision and order, with notice of entry, the plaintiffs shall serve and file in the office of the Clerk of the Supreme Court, Dutchess County, a written stipulation consenting to reduce the verdict as to damages sustained by the plaintiff Richard C. Dalzell for past pain and suffering from $1,000,000 to $500,000, and for future pain and suffering from $1,000,000 to $500,000, and to reduce the verdict as to damages sustained by the plaintiff Barbara B. Dalzell for past loss of services from $225,000 to $45,000, and for future loss of services from $225,000 to 45,000, and to the entry of an appropriate judgment accordingly;  in the event that the plaintiffs so stipulate, then the judgment, as so modified and reduced, is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff Richard C. Dalzell was injured when his vehicle was struck by another vehicle whose driver failed to observe a stop sign upon reaching the intersection at which the accident occurred.   The plaintiffs asserted at trial, inter alia, that the driver failed to observe the stop sign because the sign was in a faded condition, and that the defendant Town of Stanford was negligent in failing to replace the sign prior to the accident.

 Contrary to the contention of the Town, the verdict was not against the weight of the evidence (see, Briccio v. Disbrow, 212 A.D.2d 565, 622 N.Y.S.2d 561;  Nicastro v. Park, 113 A.D.2d 129, 134, 495 N.Y.S.2d 184).   Several days before this accident there was a fatal accident at the same location, occurring at about the same time of day.   In addition, two Town employees had been sent to replace the stop sign with a new and larger sign, arriving at the site shortly after the accident herein occurred.   Further, in addition to the testimony of the experts, there were many photographs as well as a videotape in evidence from which the jury could determine for itself the visibility of the stop sign.

Furthermore, the jury could have inferred from the evidence that the Town's negligence in failing to replace the stop sign was a proximate cause of the accident, where, as in this case, the offending driver was unfamiliar with the road and there was also a missing sign that would have signaled that there was an intersection ahead (see, Nowlin v. City of New York, 81 N.Y.2d 81, 89, 595 N.Y.S.2d 927, 612 N.E.2d 285;  Atkinson v. County of Oneida, 59 N.Y.2d 840, 464 N.Y.S.2d 747, 451 N.E.2d 494;  Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666;  Applebee v. State of New York, 308 N.Y. 502, 127 N.E.2d 289).

 We find, however, that the damages awarded to the plaintiff Richard C. Dalzell for past and future pain and suffering, and the plaintiff Barbara B. Dalzell for past and future loss of services, deviate materially from what would be reasonable compensation, and are, therefore, excessive to the extent indicated (see, CPLR 5501[c] ).

MEMORANDUM BY THE COURT.

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