FORBES v. New York City Transit Authority, Appellant-Respondent.

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

Mertle FORBES, Respondent-Appellant, et al., Plaintiff, v. CITY OF NEW YORK, et al., Defendants, New York City Transit Authority, Appellant-Respondent.

Decided: September 29, 1997

Before MILLER, J.P., and PIZZUTO, JOY and KRAUSMAN, JJ. Wallace D. Gossett, Brooklyn, for appellant-respondent. Peter D. Morris (Profeta & Eisenstein, New York City, Fred R. Profeta, Jr., of counsel), for respondent-appellant.

In an action to recover damages for personal injuries, etc., the defendant New York City Transit Authority appeals from a judgment of the Supreme Court, Kings County (Moskowitz, J.), entered May 30, 1996, which, after a jury trial on the issue of damages only, is in favor of the plaintiff Mertle Forbes and against it in the principal sum of $150,000, and the plaintiff Mertle Forbes cross-appeals, on the ground of inadequacy, from the same judgment.

ORDERED that the judgment is reversed, on the facts and as an exercise of discretion, with costs to the New York City Transit Authority, and a new trial is granted on the issue of damages only, unless within 20 days after service upon the plaintiff Mertle Forbes of a copy of this decision and order, with notice of entry, the plaintiff Mertle Forbes shall serve and file in the office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting to decrease the verdict as to damages from the sum of $150,000 to the sum of $75,000 and to the entry of an amended judgment in the principal sum of $75,000 accordingly;  in the event that the plaintiff Mertle Forbes so stipulates, then the judgment, as so reduced and amended, is affirmed, without costs or disbursements.

The defendant New York City Transit Authority contends that the $150,000 in compensatory damages awarded to the plaintiff Mertle Forbes for past pain and suffering was excessive under the circumstances of this case.   We agree that the damages awarded to Mertle Forbes for psychological injuries she sustained as a result of being trapped inside a subway car during a fire, which were not found by the jury to be permanent in nature, deviate materially from what would be reasonable compensation to the extent indicated (see, CPLR 5501[c];  Reape v. City of New York, 228 A.D.2d 659, 645 N.Y.S.2d 499;  Byrd v. New York City Tr. Auth., 172 A.D.2d 579, 568 N.Y.S.2d 628;  Small v. Zelin, 152 A.D.2d 690, 544 N.Y.S.2d 27).

MEMORANDUM BY THE COURT.

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