Pesante v. Mundell

Appeal from an amended judgment of the Supreme Court, Seneca County (W. Patrick Falvey, A.J.), entered September 20, 2005 in a personal injury and wrongful death action. The amended judgment, upon a jury verdict, awarded $373,075.71 in favor of plaintiff and against defendant.

It is hereby ordered that the amended judgment so appealed from be and the same hereby is unanimously modified on the law by granting the posttrial motion in part, setting aside the award of damages and dismissing the claim for future pecuniary loss against defendant and as modified the amended judgment is affirmed without costs, and a new trial is granted on damages for pain and suffering only unless plaintiff, within 20 days of service of a copy of the order of this Court with notice of entry, stipulates to reduce the award of damages for pain and suffering to $350,000, in which event the amended judgment is modified accordingly and as modified the amended judgment is affirmed without costs.

Same memorandum as in Estate of Pesante v Mundell (37 AD3d 1173 [2007]). Present—Scudder, RJ., Hurlbutt, Gorski, Martoche and Smith, JJ.