SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
November 4, 1968
CARMELA FERNANDES, RESPONDENT, ET AL., PLAINTIFF,
JOSEPH HAGGERTY, APPELLANT
Appeal by defendant from so much of an order of the Supreme Court, Richmond County, dated April 19, 1968, as granted the motion of plaintiff Carmela Fernandes to set aside a jury verdict in her favor for $20,000, on the ground of inadequacy, unless defendant stipulate to pay said plaintiff $35,000.
Beldock, P. J., Rabin, Benjamin, Munder and Martuscello, JJ., concur.
In our opinion, the jury's verdict in favor of Carmela Fernandes was neither "so inadequate as to shock judicial conscience" (Seward v. Motz, 22 A.D.2d 1009) nor "unconscionable" (Cesario v. Demetria Realty Corp., 250 App. Div. 272, 273). Nor does it appear on this record that the verdict was capricious or the result of passion, prejudice or sympathy (Jordan v. Smyk, 262 App. Div. 414, 416). Under these circumstances, a trial court should not lightly usurp the function of the jury in fixing the amount of damages.
Order reversed insofar as appealed from, with costs; in accordance, the second and third decretal paragraphs thereof are struck out and said plaintiff's motion denied; and jury verdict as to said plaintiff reinstated.
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