| Deshommes v Hussain |
| 2008 NY Slip Op 00643 [47 AD3d 869] |
| January 29, 2008 |
| Appellate Division, Second Department |
| Lunel Deshommes, Respondent, et al.,Plaintiff, v Mohamed Hussain et al., Appellants. |
—[*1] Ogen & Associates, P.C., New York, N.Y. (Eitan Alexander Ogen of counsel), forrespondent and plaintiff.
In an action to recover damages for personal injuries, etc., the defendants appeal, as limitedby their notice of appeal and brief, from so much of a judgment of the Supreme Court, KingsCounty (Schneier, J.), dated July 28, 2006, as, upon a jury verdict on the issue of liability findingthem 100% at fault in the happening of the accident, and a jury verdict on the issue of damagesfinding that the plaintiff Lunel Deshommes sustained damages in the principal sums of $300,000for past pain and suffering and $900,000 for future pain and suffering, is in favor of the plaintiffLunel Deshommes and against them.
Ordered that the judgment is reversed insofar as appealed from, on the facts and in theexercise of discretion, with costs, and a new trial is granted on the issue of damages only, unless,within 30 days after service upon the plaintiff Lunel Deshommes of a copy of this decision andorder, he shall serve and file in the office of the Clerk of the Supreme Court, Kings County, awritten stipulation consenting to reduce the damages for past pain and suffering from theprincipal sum of $300,000 to the principal sum of $200,000, and the damages for future pain andsuffering from the principal sum of $900,000 to the principal sum of $500,000, and to the entryof an amended judgment accordingly; in the event that the plaintiff Lunel Deshommes sostipulates, then the judgment, as so reduced and amended, is affirmed insofar as appealed from,without costs or disbursements.
The defendants' contentions that the court erred in refusing to charge the jury on comparative[*2]negligence and the emergency doctrine are without merit asthere was insufficient evidence in the record to support either theory (see Nallan vHelmsley-Spear, Inc., 50 NY2d 507, 517 [1980]; Gonzalez v Jamaica Hosp., 25 AD3d 652 [2006]; Lamuraglia vNew York City Tr. Auth., 299 AD2d 321, 324 [2002]; Arpino v Jovin C. Lombardo,P.C., 215 AD2d 614 [1995]).
While the amount of damages to be awarded for personal injuries is primarily a question forthe jury, it may be set aside if it deviates materially from what would be reasonable compensation(see CPLR 5501 [c]; Pitera vWinzer, 18 AD3d 457, 457-458 [2005]). Here, upon consideration of the nature andextent of the injuries sustained by the plaintiff Lunel Deshommes, the jury awards for past andfuture pain and suffering deviate materially from what would be reasonable compensation to theextent indicted herein (see Pitera v Winzer, 18 AD3d at 457-458; Lifshits v Variety Poly Bags, 5 AD3d566 [2004]; Lamuraglia v New York City Tr. Auth., 299 AD2d at 325; Komfortiv New York City Tr. Auth., 292 AD2d 569 [2002]). Spolzino, J.P., Skelos, Florio andDickerson, JJ., concur.