| Keeler v Reardon |
| 2008 NY Slip Op 02278 [49 AD3d 1211] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| Debra A. Keeler et al., Respondents, v Ann F. Reardon,Appellant. |
—[*1] Hancock & Estabrook, LLP, Syracuse (Maureen E. Maney of counsel), forplaintiffs-respondents.
Appeal from a judgment of the Supreme Court, Herkimer County (Michael E. Daley, J.),entered February 28, 2007 in a personal injury action. The judgment, upon a jury verdict,awarded damages in favor of plaintiffs and against defendant.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby granting the post-trial motion in part and setting aside the award of damages for future painand suffering and as modified the judgment is affirmed without costs, and a new trial is grantedon that element of damages only unless plaintiffs, within 30 days of service of a copy of the orderof this Court with notice of entry, stipulate to reduce the award of damages for future pain andsuffering to $700,000, in which event the judgment is modified accordingly and as modified thejudgment is affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained byDebra A. Keeler (plaintiff) when a vehicle driven by defendant collided with a vehicle driven byplaintiff John E. Keeler, in which plaintiff was a passenger. The accident herein occurred in 2002and, although plaintiff was injured in a motor vehicle accident in 1988, her treating neurosurgeontestified at the jury trial in this action that by 1997 plaintiff had completely recovered from theinjuries sustained in that accident. The jury returned a verdict in favor of plaintiffs, whereupondefendant moved for judgment notwithstanding the verdict or, in the alternative, to set aside theverdict and for a new trial. We conclude that Supreme Court erred in denying that part ofdefendant's motion seeking to set aside the award of damages for future pain and suffering andfor a new trial with respect to such damages.
In order to grant a motion for judgment notwithstanding the verdict, a court would haveto conclude that there was "no valid line of reasoning and permissible inferences which couldpossibly lead rational [persons] to the conclusion reached by the jury on the basis of the evidencepresented at trial" (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]), and weconclude herein that the court properly refused to grant judgment notwithstanding the verdict.With respect to defendant's alternative request for relief, i.e., to set aside the verdict and for anew trial, we conclude that the award of damages of $1,350,000 for plaintiff's future pain andsuffering[*2]"deviates materially from what would be reasonablecompensation" for the injury to plaintiff's cervical spine (see CPLR 5501 [c]; see e.g.Lamuraglia v New York City Tr. Auth., 299 AD2d 321 [2002], lv denied 100 NY2d515 [2003]; Komforti v New York City Tr. Auth., 292 AD2d 569 [2002]). We thereforeconclude that the highest amount a jury could have awarded plaintiff for future pain and sufferingwas $700,000. We therefore modify the judgment accordingly, and we grant a new trial ondamages for future pain and suffering only unless plaintiffs, within 30 days of service of a copyof the order of this Court with notice of entry, stipulate to reduce the award of damages for futurepain and suffering to $700,000, in which event the judgment is modified accordingly.We conclude, however, that the court otherwise properly refused to set aside the verdictand to grant a new trial. The evidence did not "so preponderate[ ] in favor of [defendant] that theverdict could not have been reached on any fair interpretation of the evidence" (Garrison v Geyer, 19 AD3d 1136,1136-1137 [2005]; see Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]), nor didthe award of damages otherwise deviate from what would be reasonable compensation (seeCPLR 5501 [c]). Plaintiff testified that she was completely recovered from her earlieraccident and surgery and that, after the 2002 accident, she began to have migraine headaches andexperienced "atrocious pain" in her neck and shoulders when she performed housework.According to the testimony of plaintiff's neurosurgeon, objective medical tests following theaccident in 2002 established that she had junctional facet syndrome at C4/5 and C3/4 above thearea previously fused and that "real time x-rays" revealed ligament injuries in those areas as well.The neurosurgeon opined that plaintiff's current injuries were caused by the 2002 accident.Defendant also contended in support of her post-trial motion that the statements of plaintiffs'attorney on summation that defendant's attorney was attempting to confuse and mislead the jury"represents egregious conduct warranting a new trial." Defendant failed to object at trial to two ofthe three statements at issue and thus failed to preserve for our review her contention with respectto those statements (see Driscoll v Casey, 299 AD2d 885 [2002]). With respect to thethird statement, we conclude that it was not so inappropriate that it prevented " 'the carefulconsideration of the evidence by the jury' " (id. at 886).
Finally, we do not address the contention of defendant that the court erred in denying herpretrial motion for summary judgment dismissing the complaint. Defendant's prior appeal fromthe order denying that motion was dismissed for want of prosecution, thus barring "a subsequentappeal as to all questions that were presented on the earlier appeal" (Bray v Cox, 38NY2d 350, 353 [1976]). Present—Scudder, P.J., Martoche, Centra, Fahey and Peradotto,JJ.