| Brown v City of New York |
| 2008 NY Slip Op 03574 [50 AD3d 937] |
| April 22, 2008 |
| Appellate Division, Second Department |
| Joe S. Brown et al., Respondents, v City of New York etal., Appellants. |
—[*1] Omrani & Taub, P.C., New York, N.Y. (Michael A. Zilberg, Gary T. Certain, and Jay L. T.Breakstone of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendants appeal from ajudgment of the Supreme Court, Kings County (Vaughan, J.), entered June 19, 2006, which,upon a jury verdict finding the defendant Julio A. Torro 100% at fault in the happening of theaccident, awarding the plaintiff Joe S. Brown the sums of $300,000 for past pain and suffering,$300,000 for future pain and suffering, and $350,000 for future medical expenses, and awardingthe plaintiff Susan D. Frazier-Brown the sum of $200,000 for loss of services, and upon thedenial of their motion, in effect, pursuant to CPLR 4404 (a) to set aside the jury verdict and forjudgment as a matter of law or, in the alternative, to set aside the jury awards as to damages asexcessive, is in favor of the plaintiffs and against them in the principal sum of $1,150,000.
Ordered that the judgment is affirmed, with costs.
Contrary to the defendants' contention, the Supreme Court properly granted the plaintiffs'request for a missing witness charge with respect to the defendant Julio A. Torro, the driver ofthe vehicle that allegedly struck the van of the injured plaintiff Joe S. Brown. Torro, who at allrelevant times was represented by counsel, and who had previously given deposition testimony,inexplicably failed to appear at the trial to testify. A jury may, but is not required to, draw thestrongest inference that the opposing evidence permits against a party who fails to testify at trial(see Crowder v Wells & Wells Equip.,Inc., 11 AD3d 360, 361 [2004]; Farrell v Labarbera, 181 AD2d [*2]715, 716 [1992]; see also Noce v Kaufman, 2 NY2d 347,353 [1957]).
Contrary to the defendants' contention, the verdict was not against the weight of the evidence(see Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]), and the jury's damagesawards did not deviate materially from what would be reasonable compensation (seeCPLR 5501 [c]).
The defendants' remaining contentions are without merit. Skelos, J.P., Fisher, Dillon andMcCarthy, JJ., concur.