| Segal v City of New York |
| 2009 NY Slip Op 07613 [66 AD3d 865] |
| October 20, 2009 |
| Appellate Division, Second Department |
| Joseph Segal et al., Respondents, v City of New York,Appellant, et al., Defendants. |
—[*1] Law Offices of Alan M. Greenberg, P.C. (The Breakstone Law Firm, P.C., Bellmore, N.Y.[Jay L. T. Breakstone], of counsel), for respondents.
In an action to recover damages for wrongful death and personal injuries, etc., the defendantCity of New York appeals from a judgment of the Supreme Court, Kings County (Solomon, J.),entered March 7, 2008, which, upon a jury verdict, and upon the denial of its motion, inter alia,pursuant to CPLR 4404 (a) to set aside the jury verdict on the issue of liability and for judgmentas a matter of law on the grounds, among other things, that it was not supported by legallysufficient evidence or, in the alternative, to set aside the verdict as contrary to the weight of theevidence and for a new trial on the issue of liability, and to set aside, as excessive, the juryverdict on the issue of damages, is in favor of the plaintiff Joseph Segal, as administrator of theestate of Hinda Esther Segal, and against it in the principal sum of $350,000 for the consciouspain and suffering of Hinda Esther Segal, in favor of the plaintiff Shifra Berger and against it inthe principal sum of $250,000 for past loss of parental guidance, in favor of the plaintiff ShifraBerger and against it in the principal sum of $200,000 for future loss of parental guidance, infavor of the plaintiff Shifra Berger and against it in the principal sum of $1,500,000 for pastemotional distress, in favor of the plaintiff Shifra Berger and against it in the principal sum of$250,000 for future emotional distress, in favor of the nonparty Faige Scharf and against it in theprincipal sum of $200,000 for past loss of parental guidance, and in favor of the nonparty YisroelSegal and against it in the principal sum of $200,000 for past loss of parental guidance.
Ordered that the judgment is modified, on the law, on the facts, and in the exercise ofdiscretion, by deleting the provisions thereof in favor of the plaintiff Shifra Berger and againstthe defendant City of New York in the sums of $1,500,000 for past emotional distress, $250,000for past loss of parental guidance, and $200,000 for future loss of parental guidance, in favor ofnonparty Faige Scharf and against the defendant City of New York in the sum of $200,000 forpast loss of parental guidance, and in favor of nonparty Yisroel Segal and against the defendantCity of New York in the sum of $200,000 for past loss of parental guidance; as so modified, thejudgment is affirmed, with costs, and a new trial is granted as to damages for past emotionaldistress with respect to the plaintiff Shifra Berger, 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 [*2]of the Clerk of the Supreme Court, Kings County, a writtenstipulation consenting to reduce the award of damages for past emotional distress to the plaintiffShifra Berger from the sum of $1,500,000 to the sum of $1,000,000, and to the entry of anamended judgment accordingly; in the event that the plaintiff Shifra Berger so stipulates, thenthe judgment, as so modified, reduced, and amended, is affirmed, without costs ordisbursements. The findings of fact as to liability are affirmed.
"For a court to determine that a jury verdict is not supported by legally sufficient evidence,the court must conclude that there is 'no valid line of reasoning and permissible inferences whichcould possibly lead rational [people] to the conclusion reached by the jury on the basis of theevidence presented at trial' " (Downes vCity of Mount Vernon, 60 AD3d 804, 805 [2009], quoting Cohen v Hallmark Cards,45 NY2d 493, 499 [1978]). Viewing the evidence in the light most favorable to theplaintiffs, and affording them every favorable inference which may be drawn from the evidence(see Cohen v Hallmark Cards, 45 NY2d at 499), rational jurors could conclude that thedefendant City of New York was negligent in failing to discover the defective condition of thetree involved in the accident, and to take reasonable steps to prevent harm, and that suchnegligence was a substantial factor in causing the accident (see Ferrigno v County of Suffolk, 60 AD3d 726 [2009]; cf.Ivancic v Olmstead, 66 NY2d 349 [1985], cert denied 476 US 1117 [1986]). Further,the evidence was legally sufficient to support an award, to the decedent's representative, ofdamages for the decedent's conscious pain and suffering (see Ramos v Shah, 293 AD2d459 [2002]; Walsh v Staten Is. Obstetrics & Gynecology Assoc., 193 AD2d 672 [1993];cf. Phiri v Joseph, 32 AD3d922 [2006]). Additionally, the jury's finding in that regard was based on a fair interpretationof the evidence and, thus, was not contrary to the weight of the evidence (see Lolik v Big VSupermarkets, 86 NY2d 744 [1995]; Nicastro v Park, 113 AD2d 129, 134 [1985])."Where, as here, conflicting expert testimony is presented, the jury is entitled to accept oneexpert's opinion, and reject that of another expert" (Ross v Mandeville, 45 AD3d 755, 757 [2007]; see Speciale v Achari, 29 AD3d674, 675 [2006]). "The jury's resolution of conflicting expert testimony is entitled to greatweight on appeal, as the jury had the opportunity to observe and hear the experts" (Ross vMandeville, 45 AD3d at 757; Speciale v Achari, 29 AD3d 674 [2006]).
However, we agree with the City's contention that the award of $1,500,000 to the plaintiffShifra Berger for past emotional distress deviated materially from what would be reasonablecompensation to the extent indicated (see CPLR 5501 [c]).
We also find that the awards to Shifra Berger for past and future loss of parental guidanceand to the nonparties Faige Scharf and Yisroel Segal for past loss of parental guidance were notsupported by legally sufficient evidence (see generally Cohen v Hallmark Cards, 45NY2d at 499).
The City's remaining contentions are without merit or need not be reached in light of ourdetermination. Rivera, J.P., Florio, Miller and Austin, JJ., concur.