Ramos v. City of New York ( 1991 )

Order, Supreme Court, New York County (Harold Tompkins, J.). entered on or about November 21, 1989, which, inter alia, granted the municipal defendants’ motion for a new trial unless plaintiffs stipulated to a reduction of damages from $180,000 to $75,000, unanimously affirmed, without costs.

As the result of a Caesarean operation in which plaintiff Norma Ramos’ first child was stillborn, the plaintiff suffered pain for approximately one year, was unable to enjoy sexual relations for approximately six months, has a fear of future vaginal deliveries, and has a scar. The IAS court properly determined that damages of $180,000 deviated materially from what would be reasonable compensation (CPLR 5501 [c]), and properly determined that $75,000 would be a reasonable award for these injuries.

The IAS court properly declined to allow the plaintiffs to collect damages for Mrs. Ramos’ emotional distress resulting from the stillbirth of the child on a theory of independent physical injury (see generally, Tebbutt v Virostek, 65 NY2d 931). Nor can the infection which killed the fetus be regarded as an independent physical injury suffered by the mother, as the evidence in the record does not establish that the mother in fact contracted this infection.

We have reviewed the plaintiffs’ other arguments, and find them to be without merit. Concur—Milonas, J. P., Wallach, Asch, Kassal and Smith, JJ.