Alvarez v. Beth Abraham Health Services ( 2012 )

Defendants failed to preserve their argument that the jury’s verdict was inconsistent as to liability and culpable conduct, as they failed to raise the argument before the jury was discharged (see Barry v Manglass, 55 NY2d 803, 806 [1981]; Arrieta v Shams Waterproofing, Inc., 76 AD3d 495, 496 [1st Dept 2010]). In any event, the jury’s verdict was consistent and can be reconciled with a reasonable view of the evidence (see Martinez v New York City Tr. Auth., 41 AD3d 174, 175 [1st Dept 2007]). Further, the court’s interrogatory regarding “the skin care provided to the plaintiff’ was unambiguous and consistent with the charge, evidence and applicable law (compare Plunkett v Emergency Med. Serv. of N.Y. City, 234 AD2d 162, 163 [1st Dept 1996], with Rodriguez v Budget Rent-A-Car Sys., Inc., 44 AD3d 216, 223 [1st Dept 2007]).

We find the jury’s award for past pain and suffering appropriate. Given plaintiffs relatively young age, and in light of the evidence that his ulcer may reopen in the future, we decline to disturb the jury’s award for future pain and suffering. Concur— Mazzarelli, J.P., Moskowitz, DeGrasse, Manzanet-Daniels and Clark, JJ.