| Jing Xue Jiang v Dollar Rent A Car, Inc. |
| 2012 NY Slip Op 00183 [91 AD3d 603] |
| Jnury 10, 2012 |
| Appellate Division, Second Department |
| Jing Xue Jiang, Respondent, v Dollar Rent A Car, Inc., etal., Appellants. |
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David I. Schoen, Mineola, N.Y., for appellant Jamaal Freeman. Dansker & Aspromonte Associates, New York, N.Y. (Paul Dansker and Sullivan PapainBlock McGrath & Cannavo, P.C. [Brian J. Shoot], of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from a judgmentof the Supreme Court, Kings County (Partnow, J.), entered September 9, 2010, which, upon ajury verdict, is in favor of the plaintiff and against them in the principal sums of $3,000,000 forpast pain and suffering, $3,000,000 for future pain and suffering over a period of 44 years, and$125,000 for future medical expenses over a period of 44 years.
Ordered that the judgment is modified, on the facts and in the exercise of discretion, bydeleting the provisions thereof awarding damages in the principal sums of $3,000,000 for pastpain and suffering and $3,000,000 for future pain and suffering over a period of 44 years; as somodified, the judgment is affirmed, without costs or disbursements, and the matter is remitted tothe Supreme Court, Kings County, for a new trial on the issue of damages for past and futurepain and suffering, unless within 30 days after service upon the plaintiff of a copy of this decisionand order, the plaintiff 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 past pain andsuffering from the principal sum of $3,000,000 to the principal sum of $2,500,000, and for futurepain and suffering from the principal sum of $3,000,000 over a period of 44 years to the principalsum of $2,500,000 over a period of 44 years, and to the entry of an appropriate amendedjudgment accordingly; in the event that the plaintiff so stipulates, then the judgment, as soreduced and amended, is affirmed, without costs or disbursements.
The challenges made by the defendants Dollar Rent A Car, Inc., and Rental Car FinanceCorp. to the jury charge and verdict sheet are unpreserved for appellate review. The defendantsconsented to the jury charge and verdict sheet as given to the jury (see CPLR 4110-b,4017; Ross v Mandeville, 45 AD3d755, 757 [2007]; Kwa vRoberts, 18 AD3d 444 [2005]; Zawacki v County of Nassau, 299 AD2d 542[2002]; see generally Hood v Avis RentA Car Sys., Inc., 69 AD3d 797, 799 [2010]; [*2]seealso Vehicle and Traffic Law §§ 388, 128).
Contrary to the defendants' contentions, the Supreme Court did not err in declining to strikethe testimony of the plaintiff's treating physician, Dr. Jeffrey Klein (see Logan v Roman, 58 AD3d 810[2009]; Butler v Grimes, 40 AD3d569, 570 [2007]; Krinsky v Rachleff, 276 AD2d 748, 750 [2000]). A treatingphysician may give expert opinion testimony and may do so without prior notice pursuant toCPLR 3101 (d) (see Hughes vWebb, 40 AD3d 1035, 1037 [2007]; Hammond v Welsh, 29 AD3d 518, 519 [2006]; Krinsky vRachleff, 276 AD2d at 750).
To the extent indicated herein, the damages awarded for past pain and suffering and futurepain and suffering deviated materially from what would be reasonable compensation under thecircumstances (see CPLR 5501 [c]; Belt v Girgis, 82 AD3d 1028, 1029 [2011]; Mohamed v New York City Tr. Auth.,80 AD3d 677, 678 [2011]; Stanisich v New York City Tr. Auth., 73 AD3d 737, 738 [2010];Firmes v Chase Manhattan Auto. Fin.Corp., 50 AD3d 18, 21 [2008]; Kihl v Pfeffer, 47 AD3d 154, 156 [2007]; Flaherty v Fromberg, 46 AD3d743, 745 [2007]; Machado v City of New York, 304 AD2d 626, 626-627 [2003]).Florio, J.P., Belen, Roman and Sgroi, JJ., concur.