Citation Numbers: 37 A.D.3d 794, 830 N.Y.S.2d 595
Filed Date: 2/27/2007
Status: Precedential
Modified Date: 11/1/2024
In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Westchester County (Nastasi, J.), entered August 2, 2005, as denied their motion to set aside as inadequate so much of a jury verdict as awarded the plaintiff Stephen Paruolo damages for future pain and suffering against the defendant Northern Westchester Hospital Center in the principal sum of $25,000.
Ordered that the order is reversed insofar as appealed from, on the facts and as an exercise of discretion, with costs, and the motion is granted to the extent that a new trial is granted on the issue of damages for future pain and suffering only, unless within 30 days after service upon the defendant Northern Westchester Hospital Center of a copy of this decision and order, that defendant shall serve and file in the office of the Clerk of the Supreme Court, Westchester County, a written stipulation consenting to increase the verdict as to damages for future pain and suffering from the principal sum of $25,000 to the principal sum of $150,000; in the event that the defendant Northern Westchester Hospital Center so stipulates, then the order, as so increased and amended, is affirmed insofar as appealed from, without costs or disbursements.
A jury award may be set aside and a new trial granted if the award “deviates materially from what would be reasonable compensation” (CPLR 5501 [c]; see Vaval v NYRAC, Inc., 31 AD3d 438 [2006]; Mogil v Gorgone, 225 AD2d 674, 675 [1996]; Rodriguez v City of New York, 191 AD2d 420 [1993]). Under the circumstances, a new trial is warranted on the issue of damages for future pain and suffering, unless the hospital stipulates to increase the award to the principal sum of $150,000, which is consistent with what is considered reasonable compensation (see Cordelia v Henke Mach., 283 AD2d 894, 899 [2001]; Carson v De Lorenzo, 238 AD2d 790, 792 [1997]; Lyall v City of New York, 228 AD2d 566 [1996]).
In light of our determination, we need not address the plaintiffs’ remaining contentions.
Motion by the respondent on an appeal from an order of the Supreme Court, Westchester County, entered August 2, 2005, to strike the trial transcript from the record on appeal and all references thereto in the appellants’ brief on the ground that they contain and refer to material dehors the record. By decision and order on motion of this Court dated July 31, 2006, the motion was held in abeyance and referred to the Justices hearing the appeal for determination upon the argument or submission of the appeal.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is