| Alston v Sunharbor Manor, LLC |
| 2008 NY Slip Op 01482 [48 AD3d 600] |
| February 19, 2008 |
| Appellate Division, Second Department |
| Doris Alston et al., Respondents, v Sunharbor Manor, LLC,et al., Appellants. |
—[*1] Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C. (Pollack, Pollack, Isaac & DeCicco, New York, N.Y. [Brian J. Isaac] of counsel), for respondents.
In an action to recover damages for personal injuries and wrongful death, the defendantsappeal (1) from a judgment of the Supreme Court, Nassau County (Feinman, J.), entered June 27,2006, which, upon the denial of their motion pursuant to CPLR 4401 for judgment as a matter oflaw, and upon a jury verdict, is in favor of the plaintiffs and against them in the principal sum of$3,000,000 on the cause of action to recover damages for conscious pain and suffering, (2), aslimited by their brief, from so much of an order of the same court dated September 22, 2006, asdenied their motion pursuant to CPLR 4404 (a) to set aside the verdict on the issue of liabilityand for judgment as a matter of law or, to set aside the verdict as against the weight of theevidence or in the interest of justice and for a new trial, or, to set aside the award of damages asexcessive, and (3), as limited by their brief, from so much of an amended judgment of the samecourt entered November 27, 2006, as, upon the jury verdict and upon the order, is in favor of theplaintiffs and against them in the principal sum of $3,000,000 on the cause of action to recoverdamages for conscious pain and suffering.
Ordered that the appeal from the judgment is dismissed, as the judgment was superseded bythe amended judgment entered November 27, 2006; and it is further,
Ordered that the appeal from the order is dismissed; and it is further,[*2]
Ordered that the amended judgment entered November27, 2006 is reversed insofar as appealed from, on the facts and in the exercise of discretion, withcosts, that branch of the defendants' motion which was to set aside the award of damages asexcessive is granted, the order dated September 22, 2006 is modified accordingly, and a new trialis granted on the issue of damages with respect to the cause of action to recover damages forconscious pain and suffering unless within 30 days after service upon the plaintiffs of a copy ofthis decision and order, the plaintiffs shall serve and file in the office of the Clerk of the SupremeCourt, Nassau County, a written stipulation consenting to reduce the verdict as to damages on thecause of action to recover damages for conscious pain and suffering from the principal sum of$3,000,000 to the principal sum of $1,000,000; in the event that the plaintiffs so stipulate, thenthe amended judgment entered November 27, 2006, as so reduced and amended, is affirmedinsofar as appealed from, without costs or disbursements.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of the amended judgment in the action (see Matter ofAho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are broughtup for review and have been considered on the appeal from the amended judgment enteredNovember 27, 2006 (see CPLR 5501 [a] [1]).
The evidence supports the jury's determination that the defendants were negligent and thattheir actions caused the injuries to the plaintiffs' decedent. The evidence provided a rational basisfor the jury's findings that the plaintiffs' decedent was not properly supervised, and sustainedthermal burns on his legs (see Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). Thedefendants' contention that a jury could not determine this issue from the evidence is withoutmerit (cf. 530 E. 89 Corp. v Unger, 43 NY2d 776 [1977]).
The defendants' further contention that expert testimony regarding the diagnosis of thedecedent's injuries as thermal burns should have been stricken pursuant to Frye v UnitedStates (293 F 1013 [1923]) is likewise without merit. The main purpose of a Fryeinquiry is to determine whether the scientific deduction in a particular case has beensufficiently established to have gained general acceptance in a particular field, not, as thedefendants would have it used here, to verify the soundness of a scientific conclusion (see Parker v Mobil Oil Corp., 7 NY3d434 [2006]; Nonnon v City of NewYork, 32 AD3d 91 [2006], affd 9 NY3d 825 [2007]; Zito v Zabarsky, 28 AD3d 42, 44[2006]). In this case, where there was sharply conflicting expert testimony, the jury could acceptor reject the testimony of a particular expert. The jury's resolution of conflicting expert testimonyis entitled to great weight on appeal as the jury observed and heard the experts (see Ross v Mandeville, 45 AD3d755 [2007]; Speciale v Achari,29 AD3d 674, 675 [2006]). We decline to disturb the jury's determination in this case.Moreover, the verdict was not against the weight of the evidence, as the jury's determination wasbased on a fair interpretation of the evidence (see Ross v Mandeville, 45 AD3d 755 [2007]; Torres v Esaian, 5 AD3d 670, 671[2004]; Nicastro v Park, 113 AD2d 129, 134 [1985]).
The defendants' contention that the plaintiffs' counsel made several improper remarks duringsummation is, in part, raised for the first time on appeal because no objection was raised to manyof the remarks and therefore, not properly before this Court (see Glaser v County of Orange, 22 AD3d 720, 721 [2005]). Theremarks to which the defendants did object either were based on the evidence in the trial recordor constituted isolated comments that did not deprive the defendants of a fair trial (see Friedman v Marcus, 32 AD3d820 [2006]; Lind v City of New York, 270 AD2d 315, 317 [2000]).[*3]
The award of damages for conscious pain and suffering inthe sum of $3,000,000 deviates materially from what would be reasonable compensation, and isexcessive to the extent indicated (see CPLR 5501 [c]; cf. Man-Kit Lei v City Univ. of N.Y., 33 AD3d 467, 468 [2006]).
The defendants' remaining contentions either are raised for the first time on appeal andtherefore not properly before this Court (see Glaser v County of Orange, 22 AD3d 720, 721 [2005]), arewithout merit, or do not require reversal. Spolzino, J.P., Florio, Miller and Dickerson, JJ.,concur.