| Abdelkader v Shahine |
| 2009 NY Slip Op 07210 [66 AD3d 615] |
| October 6, 2009 |
| Appellate Division, Second Department |
| Valerie Abdelkader, Respondent, v Ayman Shahine,Appellant. |
—[*1] Werbel, Werbel & Verchick, LLP (Glenn Verchick and Pollack, Pollack, Isaac & De Cicco,New York, N.Y. [Brian J. Isaac], of counsel), for respondent.
In an action to recover damages for medical malpractice and lack of informed consent, thedefendant appeals from a judgment of the Supreme Court, Kings County (Knipel, J.), datedOctober 17, 2007, which, upon a jury verdict in favor of the plaintiff and against him finding thatthe plaintiff sustained damages in the principal sums of $300,000 for past pain and suffering and$500,000 for future pain and suffering, and upon an order of the same court dated May 31, 2007,which denied his motion pursuant to CPLR 4404 (a) to set aside the jury verdict as against theweight of the evidence or to set aside the damages award as excessive, is in favor of the plaintiffand against him in the principal sums of $300,000 for past pain and suffering and $500,000 forfuture pain and suffering.
Ordered that the judgment is reversed, on the facts and in the exercise of discretion, withcosts, that branch of the defendant's motion which was pursuant to CPLR 4404 (a) to set asidethe damages award as excessive is granted, the order is modified accordingly, and the matter isremitted to the Supreme Court, Kings County, for a new trial on the issue of damages for pastand future pain and suffering only, unless within 30 days after service upon the plaintiff of acopy of this decision and order, the plaintiff shall serve and file in the office of the Clerk of theSupreme Court, Kings County, a written stipulation consenting to reduce the verdict as todamages for past pain and suffering from the principal sum of $300,000 to the principal sum of$150,000, and for future pain and suffering from the principal sum of $500,000 to the principalsum of $400,000, and to the entry of an appropriate amended judgment accordingly; in the eventthat the plaintiff so stipulates, then the judgment, as so reduced and amended, is affirmed,without costs or disbursements.
The plaintiff Valerie Abdelkader, as mother and natural guardian of Laila Abdelkader,alleged that Laila's Erb's Palsy injury was caused by the malpractice of the defendant doctor inconnection with the obstetrical care administered at Laila's birth on July 2, 1997. The juryreturned a verdict in favor of the plaintiff and against the defendant in the principal sums of[*2]$300,000 for past pain and suffering and $500,000 for future painand suffering.
A jury verdict may not be set aside as being against the weight of the evidence unless thejury could not have reached the verdict on any fair interpretation of the evidence (see Landauv Rappaport, 306 AD2d 446 [2003]; Nicastro v Park, 113 AD2d 129, 134 [1985])."Moreover, issues regarding the credibility of expert witnesses are peculiarly within the provinceof the jury to determine" (Landau v Rappaport, 306 AD2d 446, 446 [2003]). Here, itcannot be said that the evidence so preponderated in favor of the defendant that the jury couldnot have reached a verdict in favor of the plaintiff on any fair interpretation of the evidence(id.). There is no basis in the record to disturb the jury's resolution of credibility issues infavor of the plaintiff (id.).
However, we agree with the defendant that the award of damages of the principal sums of$300,000 for past pain and suffering, and $500,000 for future pain and suffering, deviates fromwhat would be reasonable compensation, and is excessive to the extent indicated herein(see CPLR 5501 [c]; Miller vWeisel, 15 AD3d 458 [2005]; Charles v Day, 289 AD2d 190 [2001];Adebowale v Charles Drew Family Health Care Ctr., 268 AD2d 542, 543 [2000]).Skelos, J.P., Covello, Leventhal and Roman, JJ., concur.