| Gersten v Boos |
| 2008 NY Slip Op 09555 [57 AD3d 475] |
| December 2, 2008 |
| Appellate Division, Second Department |
| Brian Gersten et al., Respondents, v Duane K. Boos et al.,Appellants, et al., Defendants. |
—[*1] Saretsky Katz Dranoff & Glass, LLP, New York, N.Y. (Howard R. Cohen and Alan Katz ofcounsel), for appellant County of Rockland. Lynch Law Firm, P.C., Suffern, N.Y. (James Lynch of counsel), for respondents.
In an action, inter alia, to recover damages for wrongful death, (1) the defendant Duane K. Boosappeals, and the defendant County of Rockland separately appeals from a judgment of the SupremeCourt, Rockland County (Garvey, J.), dated June 28, 2007, which, upon a jury verdict on the issue ofliability finding the defendant County of Rockland 65% at fault in the happening of the accident and thedefendant Duane K. Boos 35% at fault, and upon a jury verdict on the issue of damages finding that theplaintiffs sustained damages in the principal sums of $1,000,000 for pain and suffering and $14,700 forfuneral expenses, is in favor of the plaintiffs and against them, and (2) the defendant Duane K. Boosappeals from so much of an order of the same court dated September 29, 2007, as denied his motionpursuant to CPLR 4404 (a) to set aside the jury verdict on the issue of damages or reduce the verdictas to damages for pain and suffering, and for a new trial, and the County of Rockland separatelyappeals from so much of the same order as denied its separate motion pursuant to CPLR 4404 (a) toset aside the jury verdicts and to dismiss the complaint insofar as asserted against it, or to reduce theverdict as to damages for pain and suffering, or for a new trial.
Ordered that the order is reversed insofar as appealed from by the County of Rockland, on thelaw, without costs or disbursements, that branch of the County's motion which was to dismiss [*2]the complaint insofar as asserted against it is granted, and the motion isotherwise denied as academic; and it is further,
Ordered that the appeal by Duane K. Boos from the order is dismissed as academic, without costsor disbursements, in light of our determination on the appeal from the judgment; and it is further,
Ordered that the judgment is modified, on the law, the facts, and in the exercise of discretion, by(1) deleting the provisions thereof awarding damages against the County of Rockland, (2) adding aprovision thereto dismissing the complaint against the County of Rockland, and (3) deleting theprovision thereof awarding damages in the principal sum of $1,000,000 for pain and suffering againstDuane K. Boos; as so modified, the judgment is affirmed, and a new trial is granted against Duane K.Boos on the issue of damages for pain and suffering only unless within 30 days after service upon theplaintiffs of a copy of this decision and order, the plaintiffs shall serve and file in the office of the Clerkof the Supreme Court, Rockland County, a written stipulation consenting to reduce the verdict as todamages for pain and suffering from the principal sum of $1,000,000 to the principal sum of $350,000,and to the entry of an appropriate amended judgment against Duane K. Boos accordingly; in the eventthat the plaintiffs so stipulate, then the judgment, as so modified, reduced, and amended, is affirmed,without costs or disbursements.
The decedent was struck by a vehicle driven by the defendant Duane K. Boos travelingnorthbound on North Middletown Road in Orangetown, New York as she crossed the countyroadway. Mr. Boos did not see the decedent in the roadway, and he did not stop after the collision.There were no other witnesses to the occurrence. Despite the plaintiffs' claim that the presence of amid-block pedestrian ramp approved by the defendant County of Rockland and the absence of acorresponding marked crosswalk or pedestrian crossing signs at that location contributed to theaccident, there was no evidence adduced at trial that the decedent utilized the pedestrian ramp to crossthe roadway. Accordingly, the Supreme Court should have granted that branch of the County's motionwhich was to dismiss the complaint insofar as asserted against it, as there was no evidence from whicha rational juror could have found that the conduct of the County was a proximate cause of the accident(see Mirand v City of New York, 84 NY2d 44, 51 [1994]; Bernstein v City of NewYork, 69 NY2d 1020 [1987]; Cohen v Hallmark Cards, 45 NY2d 493 [1978]).
The plaintiffs met their burden of proving that the decedent was conscious for at least some periodof time following the accident, and thus an award of damages for pain and suffering was justified(see Cummins v County of Onondaga, 84 NY2d 322, 324 [1994]). However, the amount ofdamages awarded by the jury deviated materially from what would otherwise be reasonablecompensation to the extent indicated herein (see CPLR 5501 [c]; Rodd v Luxfer USA,272 AD2d 535, 536 [2000]; Donofrio v Montalbano, 240 AD2d 617 [1997];Portaro v Gerber, 217 AD2d 539 [1995]).
The parties' remaining contentions either are without merit or need not be reached in light of ourdetermination. Santucci, J.P., Dillon, Dickerson and Chambers, JJ., concur.