Beardsley v. Wyoming County Community Hospital

Moule, J. (dissenting).

I dissent and vote to affirm. Plaintiff, Daryl Beardsley, recovered $400,000 for his injuries. Pursuant to CPLR 4111 (subd [d]), the jury returned an itemized verdict. Plaintiff was awarded $350,000 for impairment of earning ability and $50,000 for pain and suffering and permanent injury. While the award for pain and suffering and permanent injury may have been on the low side the recovery for impairment of earning ability was high. Taken as a whole a verdict for $400,000 was neither so excessive nor so inadequate as to shock the conscience (see, e.g., Sewar v Gagliardi Bros. Serv., 69 AD2d 281, affd 51 NY2d 752; Stark v Penn Cent. Co., 32 AD2d 910, affd 26 NY2d 761; Codling v Paglia, 38 AD2d 154, affd. 32 NY2d 330; Barreto v Rothenhauser, 46 AD2d 632). The determination of damages in personal injury actions is peculiarly the function of the jury and its verdict should not be reviewed as excessive or inadequate unless the amount shocks the conscience of the court, is unconscionable, or has no basis in fact from the record (James v Shanley, 73 AD2d 752; Duchesne v Loomis, 55 AD2d 819; Mansfield v Graff, 47 AD2d 581; Hallenbeck v Caiazzo, 41 AD2d 784; 14 NY Jur, Damages, § 197). “The discretion of the court to affect damages by ordering conditional new trials should be exercised sparingly, particularly in cases where damages can not be fixed with precision” (4 Weinstein-Korn-Miller, NY Civ Prac, par 44(j)4.10). (Appeals from judgment and order of Wyoming Supreme Court — malpractice.) Present — Schnepp, J. P., Callahan, Doerr and Moule, JJ.