Albarran v. City of New York ( 1981 )

Judgment of the Supreme Court, New York County, entered on February 15, 1980 (1) modified, on the law, to strike therefrom so much thereof as awards plaintiff Geneva Albarran the sum of $120,000, with interest, for loss of consortium; (2) reversed, on the law and on the facts, and a new trial ordered on the issue of damages only, without costs, with respect to the award for wrongful death unless plaintiff, within 20 days after service upon her of a copy of the order herein, with notice of entry, serves and files in the office of the clerk of the trial court a written stipulation consenting to reduce the verdict in favor of plaintiff to $261,400 and to the entry of an amended judgment in accordance therewith. If plaintiff so stipulates, the judgment, with respect to the award for wrongful death, as so amended and reduced, is affirmed, without costs and without disbursements. We are all in agreement that no action will lie in this State for loss of consortium in connection with a wrongful death action (Leff v Schildkrout, 49 NY2d 622). Indeed, plaintiff so concedes. Additionally, we are all in agreement that the verdict of $10,000 for pain and suffering during the 10-day period intervening between the accident and the date of death should not be disturbed. Nor is there any discord among us with respect to the propriety of the jury’s apportionment of damages between the city and Berkey Film Processing. Our sole point of departure from our dissenting brother flows from what we conceive to be the excessive award in the death action. Deceased was a pickup and delivery man for Berkey. In 1969 his total annual earnings were $10,921. In 1970 they rose to $12,420 and in 1971 to $14,195. In 1972, the year of his death, they were $7,192. Annualized for that year they would have approximated $17,000. This included substantial periods of overtime in each year. Bottomed on these figures, we deem any verdict in excess of $250,000 excessive. To this sum we add the special damages properly recoverable and reduce the verdict in the death action accordingly. In the event a retrial of the death action becomes necessary, there are matters which, while not sufficient in themselves to warrant reversal, should be brought to the attention of the trial court. The deliberate endeavor of plaintiff’s counsel to inject, by indirection, the issue of religion into the case should not be permitted. Civil, as well as criminal cases, are to be tried on the merits and not by the injection of matters of race, color or creed which can serve only to inflame the passions of the jury. Similarly, the other matters which emphasized the emotional trauma which resulted from decedent’s death should be avoided. Concur — Markewich, Lupiano, Silverman and Bloom, JJ.