| Mohamed v New York City Tr. Auth. |
| 2011 NY Slip Op 00364 [80 AD3d 677] |
| January 18, 2011 |
| Appellate Division, Second Department |
| Walla Mohamed, Respondent, v New York City TransitAuthority et al., Appellants, et al., Defendant. |
—[*1] Dinkes & Schwitzer, P.C., New York, N.Y. (Andrea M. Arrigo of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants New York City TransitAuthority and Terrence Rose appeal from a judgment of the Supreme Court, Kings County(Dabiri, J.), dated July 7, 2009, which upon a jury verdict on the issue of liability, finding them tobe 80% at fault in the happening of the accident, and upon a separate jury verdict on the issue ofdamages, finding that the plaintiff sustained damages, inter alia, in the sums of $500,000 forfuture medical expenses and $7,500,000 for future pain and suffering, and upon the granting ofthe motion of those defendants to set aside the verdict to the extent that a new trial was grantedon the issue of damages for future pain and suffering only unless the plaintiff stipulated to reducethe damages for future pain and suffering from the principal sum of $7,500,000 to the principalsum of $4,000,000, and upon the plaintiff's stipulation to so reduce those damages, is in favor ofthe plaintiff and against those defendants.
Ordered that the judgment is modified, on the facts and in the exercise of discretion, bydeleting the provisions thereof finding that the plaintiff sustained damages in the sums of$500,000 for future medical expenses and $4,000,000 for future pain and suffering; as somodified, the judgment is affirmed, with costs to the defendants New York City TransitAuthority and Terrence Rose, and the matter is remitted to the Supreme Court, Kings County, fora new trial on the issue of damages for future medical expenses and future pain and sufferingonly, unless within 30 days after service upon the plaintiff of a copy of this decision and order,she shall serve and file in the office of the Clerk of the Supreme Court, Kings County, a writtenstipulation consenting to reduce the amount of damages for future medical expenses from thesum of $500,000 to the sum of $416,220 and for future pain and suffering from the sum of$4,000,000 to the sum of $3,000,000, and to the entry of an appropriate amended judgment; inthe event that the plaintiff so stipulates, then the judgment, as so reduced and amended, isaffirmed, without costs or disbursements.
The plaintiff was seriously injured as a result of an accident that occurred on October 28,2004, when she was struck and run over by a defendant New York City Transit Authority(hereinafter NYCTA) bus operated by the defendant Terrence Rose. The jury found that shesuffered damages in the sums of $4,000,000 for past pain and suffering, $500,000 for futuremedical expenses, and $7,500,000 [*2]for future pain andsuffering which was ultimately reduced pursuant to the plaintiff's stipulation to $4,000,000 forfuture pain and suffering.
The Supreme Court did not improvidently exercise its discretion in precluding the testimonyof the defendants' experts since their expert witness disclosures were untimely and improper (see Parlante v Cavallero, 73 AD3d1001 [2010]; King v Gregruss Mgt.Corp., 57 AD3d 851 [2008]; Construction by Singletree, Inc. v Lowe, 55 AD3d 861 [2008]; Schwartzberg v Kingsbridge Hgts. CareCtr., Inc., 28 AD3d 463 [2006]; McArthur v Muhammad, 16 AD3d 630 [2005]; Mankowski vTwo Park Co., 225 AD2d 673 [1996]).
While it was error for the Supreme Court to have precluded the defendants from presentingaccident reconstruction evidence to the jury, the error was ultimately harmless. The jury'sapportionment of fault to the plaintiff demonstrates that without the need for the reconstructionevidence, it accepted the defendants' only claim of negligence against the plaintiff that she hadnot crossed in the crosswalk area.
The Supreme Court's charge regarding internal rules and industry practices of the NYCTAwas proper in light of the evidence presented at trial (see e.g. Sullivan v Locastro, 178AD2d 523 [1991]; see generally Lancaster v Doctor's Hosp., 222 AD2d 301 [1995];cf. Morales v City of New York, 70 NY2d 981 [1988]).
The award for future medical expenses should be reduced to $416,220 since there was noevidence to support the jury's verdict and it was, therefore, clearly speculative (see O'Donnell v Blanaru, 33 AD3d776 [2006]; Lloyd v Russo, 273 AD2d 359 [2000]). While there was testimony bythe plaintiff's expert that the plaintiff will likely require further medication and treatment shouldshe develop an arthritic condition in the future and for back problems, the only evidenceregarding future medical expenses related to the cost of prescription medication in the amount of$6,937 per year. Accordingly, the award of $500,000 for future medical expenses was basedupon uninformed speculation (see Sanvenero v Cleary, 225 AD2d 755 [1996]).
The award of $4,000,000 for future pain and suffering deviated materially from what wouldbe reasonable compensation under the circumstances to the extent indicated herein (see De La Cruz v New York City Tr.Auth., 48 AD3d 508 [2008]; see also Bello v New York City Tr. Auth., 50 AD3d 511 [2008]; Man-Kit Lei v City Univ. of N.Y., 33AD3d 467 [2006]; compare Firmesv Chase Manhattan Auto. Fin. Corp., 50 AD3d 18 [2008]; Patterson v NassauCommunity Coll., 308 AD2d 519 [2003]; Hoenig v Shyed, 284 AD2d 225 [2001]).Florio, J.P., Balkin, Eng and Leventhal, JJ., concur.