his commentary published as part of McKinney's Consolidated Laws of New York Annotated at § C5501:8 et seq., the trial court in making a ruling "merely grants a motion for a new trial made by the aggrieved party on the ground of the inadequacy or excessiveness of the verdict 'unless' the defendant agrees to pay a higher sum (additur) or the plaintiff agrees to accept a lower sum (remittitur) than the verdict."
The Supreme Court in Gasperini noted (fn. 3 at 135 L. Ed. 2d 659, 116 S. Ct. at 2217), "the legislature sought, particularly, to curtail medical and dental malpractice and to contain 'already high malpractice premiums'", Legislative Findings and Declaration, Ch. 266, 1986 N.Y. Laws 470 (McKinney).
One would think that a verdict that "deviates materially from what would be reasonable compensation" would also "shock the conscience" of a judge reviewing a verdict. However, as the Supreme Court noted in Gasperini id. at 2218, the New York state court opinions confirm that § 5501(c)'s "deviates materially standard calls for closer surveillance than shocks the conscience oversight. (citations omitted)" See also 7 J.Weinstein, H. Korn & A. Miller, New York Civil Practice, P 5501.21, p. 55-64: "under [§ 5501(c)'s new standard, the reviewing court is given greater power to review the size of a jury award than had heretofore been afforded." Although the New York statute gives the appellate court the power and obligation to review verdicts under this new consciousness raising standard, it is now settled law that trial courts in New York first conduct the 'materially deviates" inquiry and apply the statute to requests for remittitur and additur with the same force as the appellate division, the only court authorized by the statute to do so.
In a post-Gasperini case, our Court of Appeals in Pescatore v. Pan American World Airways, Inc., 97 F.3d 1, 18 (2d Cir. 1996) contrasted the federal question standard that an award is excessive if it shocks the judicial conscience, with Ohio law in which the standard is "damages awarded are so high that to permit the award to stand would be a denial of substantial justice" and held that the Ohio standard for excessiveness is "generally similar to the federal standard." We think that the situation as to Ohio is the same as in New York, but recognize that the Supreme Court of the United States has held otherwise.
Few New York cases have actually applied Section 5501 and there is little authority as to how this should be done. Most such cases involve personal injury awards for pain and suffering. We are cautioned that we should not look at awards in other cases "for stare decisis purposes, since each requires sui genesis determination." Levine v. East Ramapo Cent. Sch. Dist., 192 A.D.2d 1025, 597 N.Y.S.2d 239 (3d Dept. 1993), cited with approval at New York Juris. Damages § 133. Also, "great deference" must be accorded to the jury's interpretation and review should be done sparingly. See, e.g. Fares v. Fox, 198 A.D.2d 396, 603 N.Y.S.2d 892 (2d Dept. 1993), Rubin v. Aaron, 191 A.D.2d 547, 594 N.Y.S.2d 797, 799 (2d Dept. 1993); Preston v. Young, 657 N.Y.S.2d 499, 502 (3d Dept. 1997); Santalucia v. County of Broome, 228 A.D.2d 895, 644 N.Y.S.2d 408, 410 (3d Dept. 1996); Daversa v. PTC Properties, 165 Misc. 2d 345, 632 N.Y.S.2d 740 (1st Dept. 1995).
The Gasperini decision in the Supreme Court, as noted earlier, does no more than change the standard for when a remittitur should be ordered. It does not tell us how to go about computing the amount of the remittitur. This Court concludes that a mere averaging of other cases involving other awards for the loss of other photographs would not be an appropriate way to fix the amount of the remittitur. Rather, this court should follow existing Second Circuit precedent in fixing the amount. This requires us to "reduce the verdict only to the maximum that would be upheld by the trial court as not excessive." Earl v. Bouchard Transp. Co., 917 F.2d 1320, 1328 (2d Cir. 1990). This is the least intrusive standard. Our Court of Appeals held in Earl :
"Some courts have employed the least intrusive standard, holding that the remitted amount should reduce the verdict only to the maximum that would be upheld by the trial court as not excessive.