Bartlett v. Snappy Car Rental, Inc.

On the court’s own motion, it is,

Ordered that the unpublished decision and order of this Court dated March 27, 1995, in the above-entitled case, is recalled and vacated, and the following decision and order is substituted therefore:

In an action to recover damages for personal injuries, etc., the defendants Snappy Car Rental, Inc., and Linda DeLeo appeal from a judgment of the Supreme Court, Queens County (Rutledge, J.), entered September 1, 1993, which, upon a jury verdict awarding her the sum of $700,000 ($185,000 for past pain and suffering, $125,000 past loss of earnings, $350,000 for future pain and suffering, and $40,000 for future loss of earnings), and after adjusting the awards for future pain and suffering and future loss of earnings to present value, is in favor of the plaintiff and against them in the principal sum of $603,216.

Ordered that the judgment is modified, on the facts and as an exercise of discretion, by deleting therefrom the first, second, and fourth decretal paragraphs, and substituting therefor a provision severing the plaintiff’s causes of action for past and future pain and suffering and granting a new trial with respect thereto; as so modified the judgment is affirmed, with costs to the appellants, and the matter is remitted to the Supreme Court, Queens County, for the entry of an amended judgment in favor of the plaintiff on her causes of action to recover damages for past and future loss of earnings, and for a new trial on her causes of action to recover damages for past and future pain and suffering, unless within 20 days after service upon the plaintiff of a copy of this decision and order, with notice of entry, the plaintiff shall serve and file in the office of the clerk of the Supreme Court, Queens County, a written stipulation consenting to reduce the verdict as to damages for past pain and suffering from the sum of $185,000 to the sum of $135,000 and for future pain and suffering from the sum of $350,000 to the sum of $250,000, and to the entry of an appropriate amended judgment accordingly; in the event that the plaintiff so stipulates, then the judgment, as so reduced and amended, is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for entry of an appropriate amended judgment accordingly. The findings of fact as to liability are affirmed.

On June 18, 1986, the plaintiff drove her car into the intersection of 160th Street and Clintonville Road, Queens, preparing to turn left onto Clintonville. The rental car of the defendant Snappy Car Rental, Inc., being driven by defendant Lee Rosenzweig passed a stop sign on Clintonville and collided with the plaintiff’s car. The plaintiff was hospitalized, and her pre-existing "essential tremors” progressed significantly with debilitating results. Further, the plaintiff now suffers from severe headaches which, coupled with the tremors, prevent her from leading a normal and active life.

Contrary to the defendants’ contentions, we find that the jury’s finding of negligence was supported by the evidence presented at trial (see, Nicastro v Park, 113 AD2d 129). Furthermore, the defendants’ contention that the plaintiff was negligent as a matter of law is without merit since questions of fact existed as to possible negligence by the plaintiff, which questions of fact were properly submitted to the jury for resolution (cf., Rebecchi v Whitmore, 172 AD2d 600).

Although the awards for past and future loss of earnings were supported by the evidence, we agree with the defendants that the awards for past and future pain and suffering materially deviated from what would be reasonable compensation (CPLR 5501 [c]). Our review of the record indicates that the evidence supports awards of $135,000 for past pain and suffering and $250,000 for future pain and suffering. Sullivan, J. P., Balletta, Rosenblatt and Miller, JJ., concur.