| Browne v City of New York |
| 2009 NY Slip Op 07970 [67 AD3d 620] |
| November 4, 2009 |
| Appellate Division, Second Department |
| Clinton Browne, Respondent, v City of New York et al.,Appellants. |
—[*1] Burns & Harris (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac andMichael H. Zhu], of counsel), for respondent.
In an action, inter alia, to recover damages for personal injuries, the defendants appeal froma judgment of the Supreme Court, Kings County (Saitta, J.), entered July 17, 2008, which, upona jury verdict on the issue of liability in favor of the plaintiff and against them, and upon a juryverdict on the issue of damages finding that the plaintiff sustained damages in the principal sumsof $375,000 for past pain and suffering and $375,000 for future pain and suffering, is in favor ofthe plaintiff and against them.
Ordered that the judgment is modified, on the facts and in the exercise of discretion, bydeleting the provision thereof awarding the plaintiff damages for past pain and suffering; as somodified, the judgment is affirmed, with costs to the defendants, and a new trial is granted on theissue of damages for past pain and suffering only, unless within 30 days after service upon theplaintiff of a copy of this decision and order, the plaintiff shall serve and file in the office of theClerk of the Supreme Court, Kings County, a written stipulation consenting to reduce the verdictas to damages for past pain and suffering from the principal sum of $375,000 to the principalsum of $250,000, and to the entry of an amended judgment accordingly; in the event the plaintiffso stipulates, then the judgment, as so reduced and amended, is affirmed, without costs ordisbursements.
Although the notice of claim did not mention "negligence" as a specific theory of recovery, itnevertheless adequately apprised the defendants that the plaintiff would seek to impose liabilityunder such a theory (see DeLeonibus v Scognamillo, 183 AD2d 697, 698 [1992]; cf.Urena v City of New York, 221 AD2d 429 [1995]; Mazzilli v City of New York,154 AD2d 355 [1989]; Demorcy v City of New York, 137 AD2d 650 [1988]). However,the amount of damages awarded by the jury for past pain and suffering deviated materially fromwhat would be reasonable compensation to the extent indicated herein (see CPLR 5501[c]; Sow v Arias, 21 AD3d 317[2005]; Van Nostrand v Froehlich,18 AD3d 539 [2005]; Lamuraglia v New York City Tr. Auth., 299 AD2d 321[2002]; Komforti v New York City Tr. Auth., 292 AD2d 569 [2002]; Marr vForrest, 208 AD2d 908 [1994]).[*2]
The defendants' remaining contentions are without merit.Skelos, J.P., Florio, Balkin and Leventhal, JJ., concur.