| Nutley v New York City Tr. Auth. |
| 2010 NY Slip Op 09109 [79 AD3d 711] |
| December 7, 2010 |
| Appellate Division, Second Department |
| Michael Nutley, Respondent, v New York City TransitAuthority, Appellant. |
—[*1] Steven Wildstein, P.C., Great Neck, N.Y. (Michael Maiolica of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from a judgment of theSupreme Court, Queens County (Lane, J.), entered September 30, 2009, which, upon a jury verdictfinding it 90% at fault in the happening of the accident, upon a jury verdict finding that the plaintiffsustained damages in the sums of $300,000 for past pain and suffering and $200,000 for future painand suffering, and upon an order of the same court dated August 4, 2009, denying the defendant'smotion, inter alia, pursuant to CPLR 4404 (a) to set aside the award for past and future pain andsuffering as excessive, is in favor of the plaintiff and against it in the principal sum of $450,000 andawarded interest at the rate of 4% per annum from the date of the verdict.
Ordered that the judgment is modified, on the law, by deleting the provision thereof awardinginterest at the rate of 4% per annum from the date of the verdict and substituting therefor a provisionawarding interest at the rate of 3% per annum from the date of the verdict; as so modified, the judgmentis affirmed, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Queens County,for the entry of an appropriate amended judgment.
" 'While the amount of damages to be awarded for personal injuries is primarily a question for thejury, an award may be set aside when it deviates materially from what would be reasonablecompensation' " (Miller v Weisel, 15AD3d 458, 459 [2005], quoting Iovine v City of New York, 286 AD2d 372, 373[2001]). Here, the plaintiff suffered an injury to his dominant hand and wrist which required surgery.Despite the surgery, the plaintiff continued to experience pain, numbness, tingling, loss of strength, andloss of motion in his wrist and hand. Under these circumstances, the jury's award for past and futurepain and suffering did not deviate materially from what would be reasonable compensation (seeCPLR 5501 [c]; Laskowsky v Sullivan, 272 AD2d 299 [2000]; cf. Harris v City of New York, 2 AD3d782, 783-784 [2003]; Neils v Putnam Hosp. Ctr., 276 AD2d 607, 608 [2000]).
However, the judgment incorrectly applied an interest rate of 4% per annum to the plaintiff's awardagainst the defendant, New York City Transit Authority (hereinafter the Authority) (see PublicAuthorities Law § 1212 [6]; Fa-Shun Ou v New York City Tr. Auth., 309 AD2d 781,782 [2003]). Pursuant to Public Authorities Law § 1212 (6), the rate of interest to be paid bythe Authority "shall [*2]not exceed three per centum per annum."Accordingly, we modify the judgment to reflect a proper rate of interest of 3% per annum from the dateof the verdict. Rivera, J.P., Chambers, Austin and Sgroi, JJ., concur. [Prior Case History: 2009NY Slip Op 31818(U).]