| Smith v Sheehy |
| 2007 NY Slip Op 09019 [45 AD3d 670] |
| November 13, 2007 |
| Appellate Division, Second Department |
| James Smith, Appellant-Respondent, v Eric Sheehy et al.,Respondents-Appellants. |
—[*1] Wallace D. Gossett (Steve Efron, New York, N.Y. of counsel), forrespondents-appellants.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an amended judgment of the Supreme Court, Richmond County(Vitaliano, J.), dated April 5, 2006, as, upon a jury verdict on the issue of damages, is in favor ofhim and against the defendants in the sum of only $43,333 for future pain and suffering for aperiod of one year, and the defendants cross-appeal from the amended judgment.
Ordered that the defendants' cross appeal is dismissed as abandoned (see 22 NYCRR670.8 [e]); and it is further,
Ordered that the amended judgment is reversed insofar as appealed from, on the law and thefacts, and the matter is remitted to the Supreme Court, Richmond County, for a new trial on theissue of damages for future pain and suffering, with costs, unless within 30 days after serviceupon the defendants of a copy of this decision and order, the defendants shall serve and file in theoffice of the Clerk of the Supreme Court, Richmond County, a written stipulation consenting toincrease the verdict as to damages for future pain and suffering from the principal sum of$43,333 to the principal sum of $300,000 and to the entry of an appropriate second amendedjudgment accordingly; in the event the defendants so stipulate, then the amended judgment, as soincreased and amended, is affirmed insofar as appealed from, without costs or disbursements.[*2]
At the conclusion of the damages phase of a bifurcatedtrial, the jury returned a verdict finding that the plaintiff sustained an injury which constituted a"serious physical injury" which had resulted in a "permanent consequential limitation of use of abody organ or member." The jury awarded the plaintiff damages for past pain and suffering in thesum of $460,000, and in the sum of $43,333 for future pain and suffering for a period of only oneyear.
An amended judgment was entered upon the jury verdict, and the plaintiff appeals,contending, inter alia, that the damages for future pain and suffering for a one-year period wasinherently inconsistent with the jury's finding that he had sustained a permanent limitation, andthat the sum awarded was inadequate and against the weight of the evidence.
As the defendants correctly contend, any claim of inconsistency is unpreserved for appellatereview because the plaintiff failed to object to the verdict, before the jury was discharged, on theground that it was inconsistent (seeJamal v Gohel, 25 AD3d 587 [2006]; Califano v Automotive Rentals, 293AD2d 436 [2002]).
However, the jury's verdict awarding damages for future pain and suffering constitutes amaterial deviation from what would be reasonable compensation to the extent indicated herein(see Ramos v Noveau Indus., Inc.,29 AD3d 555 [2006]; Ciatto vLieberman, 1 AD3d 553 [2003]; Califano v Automotive Rentals, 293 AD2d at436).
Under these circumstances, a new trial is warranted on the issue of damages for future painand suffering only. Since a new trial is required, we note that the plaintiff's contention that thetrial court erred by instructing the jury to disregard any testimony regarding the need for futuresurgery is without merit. The plaintiff conceded that the need for future surgery was not includedin the pleadings, and, as such, the Supreme Court properly excluded such testimony (see Thomas v 14 Rollins St. RealtyCorp., 25 AD3d 317, 318 [2006]). Miller, J.P., Lifson, Angiolillo and McCarthy, JJ.,concur.