Muller v. Marino , 413 N.Y.S.2d 622 ( 1979 )

— In a negligence action to recover damages for wrongful death and conscious pain and suffering, in which the latter cause of action was dismissed by the trial court after all of the testimony had been completed, plaintiff appeals, on the ground of inadequacy, from a judgment of the Supreme Court, Queens County, entered December 7, 1977, which is in his favor on the cause of action for wrongful death, upon a jury verdict in the amount of $25,000. Judgment reversed, on the law, and new trial granted upon the issue of damages only, with costs to abide the event, unless within 30 days after entry of the order to be made hereon, defendants shall serve and file in the office of the clerk of the trial court a written stipulation consenting to increase the verdict in favor of plaintiff on the wrongful death cause of action to $35,000, and to the entry of an amended judgment accordingly, in which event the judgment, as so increased and amended, is affirmed, without costs or disbursements. The damages awarded were inadequate to the extent indicated herein. Damiani, J. P., Gulotta, Hargett and Mangano, JJ., concur.