RYE, GAIL E. v. LIFT LINE, INC. ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 140 CA 11-00129 PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND GORSKI, JJ. GAIL E. RYE, PLAINTIFF-APPELLANT, V MEMORANDUM AND ORDER LIFT LINE, INC. AND ROCHESTER GENESEE REGIONAL TRANSPORTATION AUTHORITY, DEFENDANTS-RESPONDENTS. (APPEAL NO. 1.) CELLINO & BARNES, P.C., ROCHESTER (CHARLES F. BURKWIT OF COUNSEL), FOR PLAINTIFF-APPELLANT. WOODS OVIATT GILMAN LLP, ROCHESTER (GRETA K. KOLCON OF COUNSEL), FOR DEFENDANTS-RESPONDENTS. Appeal from an order of the Supreme Court, Monroe County (Matthew A. Rosenbaum, J.), entered April 28, 2010 in a personal injury action. The order denied plaintiff’s motion to set aside the jury verdict regarding pain and suffering damages awarded to plaintiff and for a new trial relating to past and future pain and suffering. It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the post-trial motion is granted, the verdict is set aside and a new trial is granted on damages for past and future pain and suffering unless defendants, within 30 days of service of a copy of the order of this Court with notice of entry, stipulate to increase the award of damages for past pain and suffering to $45,000 and for future pain and suffering to $15,000, in which event judgment shall be entered accordingly. Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained while a passenger on a bus operated by defendants. The incident in question occurred when the bus stopped suddenly and plaintiff was ejected from her wheelchair, causing her to slide head first into a partition located behind the driver’s seat. Defendants conceded liability and, after a trial on damages only, the jury awarded plaintiff damages in the amount of $10,000 for past pain and suffering and zero damages for future pain and suffering. We agree with plaintiff that Supreme Court erred in denying her post- trial motion to set aside the verdict and for a new trial on damages inasmuch as the verdict deviates materially from what would be reasonable compensation (see CPLR 5501 [c]). Plaintiff’s injuries included a slightly displaced fracture of her right femoral medial condyle, i.e., knee joint. The injuries plaintiff sustained in the accident, combined with her preexisting medical conditions, forced her -2- 140 CA 11-00129 to spend just over two months in the hospital and a rehabilitation facility. We therefore reverse the order, grant the post-trial motion and set aside the verdict, and we grant a new trial on damages for past and future pain and suffering, unless defendants, within 30 days of service of a copy of the order of this Court with notice of entry, stipulate to increase the award of damages for past pain and suffering to $45,000 and for future pain and suffering to $15,000, in which event judgment shall be entered accordingly (see Inya v Ide Hyundai, Inc., 209 AD2d 1015; see also LaPort v Bojedla, 262 AD2d 1025; cf. Miller v Reynolds, 298 AD2d 836). Entered: January 31, 2012 Frances E. Cafarell Clerk of the Court