| Fishbane v Chelsea Hall, LLC |
| 2009 NY Slip Op 06504 [65 AD3d 1079] |
| September 15, 2009 |
| Appellate Division, Second Department |
| Myron Fishbane, Respondent, et al., Plaintiff, v ChelseaHall, LLC, Defendant, and Chelsea Apartments, LLC, et al.,Appellants. |
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Kahn Gordon Timko & Rodrigues, P.C., New York, N.Y. (Nicholas I. Timko and Brian J.Isaac of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the defendants ChelseaApartments, LLC, and Apartment Management Associates, LLC, appeal from a judgment of theSupreme Court, Kings County (Levine, J.), dated March 13, 2008, which, upon an order of thesame court (Solomon, J.), dated February 7, 2007, granting the plaintiffs' motion to strike theiranswer for failure to comply with discovery, and an order of the same court (Solomon, J.), datedMay 2, 2007, denying their motion for leave to renew and reargue their opposition to theplaintiffs' motion to strike, and upon a jury verdict in favor of the plaintiff Myron Fishbane andagainst them, finding that he sustained damages in the principal sums of $500,000 for past painand suffering and $300,000 for future pain and suffering, is in favor of that plaintiff and againstthem.
Ordered that the judgment is reversed, on the facts and as an exercise of discretion, withcosts, and the defendants Chelsea Apartments, LLC, and Apartment Management Associates,LLC, are granted a new trial with respect to damages for past and future pain and sufferingunless within 30 days after service upon the plaintiff Myron Fishbane of a copy of this decisionand order, that plaintiff shall serve and file in the office of the Clerk of the Supreme Court, KingsCounty, a written stipulation consenting (1) to reduce the verdict as to damages for past pain andsuffering from the sum of $500,000 to the sum of $350,000, and (2) to reduce the verdict as todamages for future pain and suffering from the sum of $300,000 to the sum of $200,000, and tothe entry of an appropriate amended judgment accordingly; in the event that the plaintiff MyronFishbane so stipulates, then the judgment, as so reduced and amended, is affirmed, without costsor disbursements.
The plaintiffs commenced this action to recover damages for a trimalleolar ankle fracturesustained by the plaintiff Myron Fishbane on December 10, 2004 when he allegedly slipped andfell on the steps of a building owned and managed by the defendants Chelsea Apartments, LLC,and Apartment Management Associates, LLC (hereinafter the defendants). In December 2006the plaintiffs moved to strike the defendants' answer pursuant to CPLR 3126 for failure tocomply with [*2]court-ordered disclosure, and, after oralargument, the Supreme Court granted the motion. The defendants subsequently moved for leaveto renew and reargue the motion, and upon renewal, in effect, to vacate the order striking theanswer. The Supreme Court denied the motion for leave to renew and reargue. After a trial onthe issue of damages, the jury awarded the plaintiff Myron Fishbane the sum of $500,000 forpast pain and suffering and the sum of $300,000 for 11 years of future pain and suffering.
The determination whether to strike a pleading for failure to comply with court-ordereddisclosure lies within the sound discretion of the trial court (see CPLR 3126 [3]; Mir v Saad, 54 AD3d 914 [2008];Bates v Baez, 299 AD2d 382 [2002]; Patterson v Greater N.Y. Corp. of Seventh DayAdventists, 284 AD2d 382 [2001]). Here, contrary to the defendants' contention, theSupreme Court did not improvidently exercise its discretion in granting the plaintiffs' motion tostrike the defendants' answer. We decline to consider the defendants' contention that the SupremeCourt erred in denying that branch of their motion which was for leave to renew their oppositionto the motion to strike their answer, since the issue could have been raised on an earlier appealthat was dismissed for lack of prosecution by decision and order on motion of this Court datedMarch 4, 2008 (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750 [1999];Bray v Cox, 38 NY2d 350 [1976]).
We do find, however, that the jury verdict awarding damages to the plaintiff Myron Fishbanein the sum of $500,000 for past pain and suffering and $300,000 for future pain and sufferingwas excessive to the extent indicated herein, as it deviated materially from what would bereasonable compensation (see CPLR 5501 [c]; Lowenstein v Normandy Group, LLC, 51 AD3d 517 [2008]; Clark v N-H Farms, Inc., 15 AD3d605, 606 [2005]). Santucci, J.P., Covello, Leventhal and Belen, JJ., concur.