New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
March 20, 2013
ALFRED K. KELLY, RESPONDENT, --
THE CITY OF NEW YORK AND THE METROPOLITAN TRANSIT AUTHORITY, DEFENDANTS, -AND- THE NEW YORK CITY TRANSIT AUTHORITY, APPELLANT.
Appeal from an amended judgment of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered December 29, 2010.
Kelly v City of New York
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on March 20, 2013
PRESENT: RIOS, J.P., PESCE and ALIOTTA, JJ
The amended judgment, entered upon a jury verdict on the issue of damages awarding plaintiff the principal sums of $165,000 for past pain and suffering and $110,000 for future pain and suffering, and upon an order of the same court, dated November 5, 2010, granting defendant's motion pursuant to CPLR 4404 (a) to set aside the jury verdict and for a new trial on the issue of damages or, in the alternative, to reduce the amount of damages awarded upon the jury verdict as excessive, to the extent of directing a new trial on the issue of damages unless plaintiff stipulated to reduce the jury verdict from the sum of $165,000 to $75,000 for past pain and suffering and from the sum of $110,000 to $100,000 for future pain and suffering, awarded plaintiff the principal sum of $175,000 upon plaintiff's stipulation to the reduction in lieu of a new trial on the issue of damages.
ORDERED that the amended judgment is affirmed, without costs.
This action to recover damages for personal injuries was originally commenced against the City of New York, the New York City Transit Authority and the Metropolitan Transit Authority in Supreme Court, Queens County, and was subsequently transferred, pursuant to CPLR 325 (d), to the Civil Court, Queens County. A jury trial was conducted solely on the issue of damages, after the New York City Transit Authority, then the only remaining defendant in the case, conceded liability.
At the time of the accident, which occurred on February 18, 2007, plaintiff was 43 years old. Plaintiff testified that, although he had not had neck pain prior to the accident, since that time, he had suffered increasing pain radiating from his neck to his shoulders and numbness in his arms and that he was no longer able to perform various specified activities that he had performed prior to the accident. Plaintiff's neurologist testified that the accident had caused plaintiff to suffer cervical radiculopathy at the C6 intervertebral level, which was confirmed by EMG and other objective tests, and that plaintiff had decreased cervical range of motion. Plaintiff's neurologist further testified that, at plaintiff's last visit, in April 2010, one month before the trial, the neurologist had found, after a clinical examination, that plaintiff had a left side C7 radiculopathy, although no EMG was performed to confirm this. Defendant's neurologist testified that, after a neurological examination of plaintiff in June 2008, she found plaintiff's cervical range of motion to be within normal limits.
The jury awarded plaintiff $165,000 for past pain and suffering and $110,000, over the course of 20 years, for future pain and suffering. Defendant moved, pursuant to CPLR 4404 (a), to set aside the jury verdict and for a new trial on the issue of damages or, in the alternative, to reduce the jury verdict as excessive, on the ground that it deviated materially from what would be reasonable compensation. The Civil Court granted defendant's motion to the extent of directing a new trial on the issue of damages unless plaintiff stipulated to reduce the jury's awards for past pain and suffering from $165,000 to $75,000 and for future pain and suffering from $110,000 to $100,000. Plaintiff so stipulated, and an amended judgment in the principal sum of $175,000 was entered. Defendant appeals from the amended judgment, contending that the damages awarded to plaintiff for past pain and suffering and future pain and suffering, as reduced by the Civil Court, subject to plaintiff's stipulation, are excessive.
The standard for reviewing the inadequacy or excessiveness of a jury award is whether it "deviates materially from what would be reasonable compensation" (CPLR 5501 [c]). Since the inherently subjective nature of non-economic awards cannot produce mathematically precise results, the "reasonableness" of compensation must be measured against the relevant precedent of comparable cases (see Donlon v City of New York, 284 AD2d 13, 15-16 ). Upon a review of the record, we are of the opinion that the damages awarded to plaintiff for past pain and suffering and future pain and suffering, as reduced by the Civil Court, subject to plaintiff's stipulation, did not materially deviate from what would be reasonable compensation (see CPLR 5501 [c]; Yamamoto v Carled Cab Corp., 66 AD3d 603 ; Granovskaya v City of New York, 13 AD3d 412 ). We note that we give little weight to the testimony of defendant's examining neurologist who concluded that plaintiff's injuries had resolved, since she simply stated that plaintiff's cervical range of motion was within normal limits without quantifying the range of motion that she had observed (see generally Perl v Meher, 18 NY3d 208 ).
Accordingly, the amended judgment is affirmed.
Rios, J.P., Pesce and Aliotta, JJ., concur. Decision Date: March 20, 2013
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