| Stanisich v New York City Tr. Auth. |
| 2010 NY Slip Op 03900 [73 AD3d 737] |
| May 4, 2010 |
| Appellate Division, Second Department |
| Anthony Stanisich et al., Respondents, v New York CityTransit Authority, Appellant, et al., Defendants. |
—[*1] Sullivan Papain Block McGrath & Cannavo P.C., New York, N.Y. (Brian J. Shoot ofcounsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendant New York CityTransit Authority appeals from a judgment of the Supreme Court, Queens County (Elliot, J.),entered November 21, 2008, which, upon a jury verdict on the issue of liability finding it to be100% at fault in the happening of the accident, and upon a jury verdict awarding the plaintiffAnthony Stanisich the sum of $500,000 for past pain and suffering, and the sum of $1,500,000for future pain and suffering, and awarding the plaintiff Madeleine Stanisich the sum of$200,000 for past loss of services, and the sum of $200,000 for future loss of services, is in favorof the plaintiffs and against it.
Ordered that the judgment is modified, on the facts and in the exercise of discretion, bydeleting the provisions thereof awarding the plaintiff Anthony Stanisich the sum of $1,500,000for future pain and suffering, and awarding the plaintiff Madeleine Stanisich the sum of$200,000 for past loss of services and $200,000 for future loss of services; as so modified, thejudgment is affirmed, with costs, and the matter is remitted to the Supreme Court, QueensCounty, for a new trial on the issue of damages for past and future loss of services only, unlesswithin 30 days after service upon the plaintiffs of a copy of this decision and order, the plaintiffAnthony Stanisich serves and files in the office of the Clerk of the Supreme Court, KingsCounty, a written stipulation consenting to reduce the verdict as to damages for future pain andsuffering from the sum of $1,500,000 to the sum of $1,000,000 and the plaintiff MadeleineStanisich serves and files in the office of the Clerk of the Supreme Court, Kings County, awritten stipulation consenting to reduce the verdict as to damages for past loss of services fromthe sum of $200,000 to the sum of $25,000, and for future loss of services from the sum of$200,000 to the sum of $75,000, and to the entry of an appropriate amended judgmentaccordingly; in the event that the plaintiffs so stipulate, then the judgment, as so reduced andamended, is affirmed, without costs or disbursements.
The injured plaintiff, Anthony Stanisich (hereinafter Stanisich), was struck by a bus whilecrossing the street at an intersection as a bus was making a left turn. Stanisich was hospitalizedfor approximately one week, and underwent surgery and other procedures following hisdischarge from the hospital. Stanisich and his wife, suing derivatively, subsequently commencedthis action.
After a jury trial, the defendant New York City Transit Authority (hereinafter the appellant)[*2]was found to be 100% at fault in the happening of theaccident. The evidence adduced at trial revealed that Stanisich sustained multiple injuries,including a fractured spine, a cervical sprain, a partial tear of his rotator cuff and nerve damageand, as a result, suffers from pain and a limited range of motion. He also suffers from symptomssuch as loss of memory, dizziness, persistent headaches, and difficulty concentrating.
Contrary to the appellant's contention, the Supreme Court did not err in excluding thediagram portion of the appellant's accident report from evidence (see Williams vAlexander, 309 NY 283, 286-287 [1955]; Coker v Bakkal Foods, Inc., 52 AD3d 765, 766 [2008]; Reed vNew York City Tr. Auth., 299 AD2d 330, 332 [2002]), and therefore, its argument that hadthe jurors seen the diagram, they likely would have allocated a significant percentage of fault toStanisich is without merit.
Under the facts of this case, the jury's award for past pain and suffering did not deviatematerially from what would be reasonable compensation (see CPLR 5501 [c]; Taylor v Martorella, 35 AD3d722, 723 [2006]; Twersky vBusche, 37 AD3d 704, 704-705 [2007]; Schwartz v Rosenthal, 244 AD2d 325[1997]; Trosty v Mendon Leasing Corp., 233 AD2d 318, 319 [1996]). However, weagree with the appellant that the jury's award for future pain and suffering and for past and futureloss of services deviates from what would be reasonable compensation, and is excessive to theextent indicated herein (see CPLR 5501 [c]; see Wallace v Stonehenge Group, Ltd., 33 AD3d 789 [2006];Lamuraglia v New York City Tr. Auth., 299 AD2d 321 [2002]). Santucci, J.P.,Angiolillo, Leventhal and Lott, JJ., concur.