Tocco v. Cafe Nino, Inc. ( 1965 )

In a negligence action to recover damages for personal injury sustained by plaintiff who, while miaking a delivery to a restaurant owned by the defendant Cafe Nin'o, Inc., was injured when a sidewalk freight elevator fell down from the street level to the basement after plaintiff had stepped ion it, in which action the defendant served a third-party complaint against the third-p’arty defendant Maroato Elevator Company, Inc,, an elevator maintenance company then under contract to service the elevator, both the defendant and third-party defendant appeal as follows from a judgment of the Supreme Court, Kings County, entered June 30, 1964 upon the decision of the court after a nonjury trial, which directed recovery by plaint® against defendant of damages in the sum of $32,000, plus interest thereon and costs, ¡and which directed recovery over by the defendant as third-party plaintiff against the third-panty defendant of said damages and interest, plus costs: (1) The defendant appeals from so much of the judgment as is in favor of the plaintiff against it, (2) The third-party defendant appeals from the entire judgment. Judgment reversed on the law and the facts and a new trial granted, with costs to abide the event, unless, within 30 days after entry of the order hereon, plaintiff shall serve and file a written stipulation consenting to reduce the damage award from $32,000 to $15,000; to reduce the interest proportionately, and to modify the judgment accordingly. In the event such stipffiation be served and filed, then the recovery over by the defendant as third-party plaint® against the third-party defendant is reduced accordingly and the entire judgment, as so reduced and modffied, is affirmed, without easts. In our opinion, under all the circumstances the amount of the damages awarded wtis excessive, at least to the extent indicated. Beldoek, P, J., Ughetta, Hill, Rabin and Benjtaain, JJ,, concur.