| Bergamo v Verizon N.Y., Inc. |
| 2012 NY Slip Op 03580 [95 AD3d 916] |
| May 8, 2012 |
| Appellate Division, Second Department |
| Doreen Bergamo, as Guardian ad Litem of Matthew V. Falcone, Jr.,Respondent, v Verizon New York, Inc., et al., Appellants. |
—[*1] Kramer, Dillof, Livingston & Moore, New York, N.Y. (Thomas A. Moore, Matthew Gaier,and Norman Bard of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from a judgmentof the Supreme Court, Kings County (Knipel, J.), entered February 7, 2011, which, upon a juryverdict on the issue of liability finding them 100% at fault in the happening of the accident andupon a separate jury verdict on the issue of damages awarding the plaintiff the sums of$30,000,000 for past pain and suffering, $5,438,000 for future pain and suffering for 25 years,and $5,438,000 for total future life care needs, upon the denial of their oral motion pursuant toCPLR 4404 (a) to set aside the verdict on the issue of liability and for judgment as a matter oflaw, upon an order of the same court dated November 17, 2010, inter alia, granting that branch oftheir separate motion pursuant to CPLR 4404 (a) which was for a new trial on the issue ofdamages for past pain and suffering unless the plaintiff stipulated to reduce the award for pastpain and suffering from the sum of $30,000,000 to the sum of $7,500,000, and denying thebranch of that motion pursuant to CPLR 4404 (a) which was to set aside the damages awards forfuture pain and suffering and future life care needs as excessive, and upon the plaintiff'sstipulation to reduce the award for past pain and suffering from the sum of $30,000,000 to thesum of $7,500,000, is in favor of the plaintiff and against them in the principal sums of$7,500,000 for past pain and suffering, $5,438,000 for future pain and suffering, and $5,438,000for future life care needs.
Ordered that the judgment is modified, on the facts and in the exercise of discretion, bydeleting the provisions thereof awarding damages for past and future pain and suffering; as somodified, the judgment is affirmed, with costs to the defendants, and the matter is remitted to theSupreme Court, Kings County, for a new trial on the issue of damages for past and future painand suffering only, unless within 30 days after service upon the plaintiff of a copy of thisdecision and order, the plaintiff shall serve and file in the office of the Clerk of the SupremeCourt, Kings County, a written stipulation consenting to reduce the award of damages for pastpain and suffering from the reduced sum of $7,500,000 to the sum of $2,000,000 and the awardof damages for future pain and suffering from the sum of $5,438,000 to the sum of $4,000,000,and to the entry of an amended judgment accordingly; in the event that the plaintiff so stipulates,then the judgment, [*2]as so reduced and amended, is affirmed,without costs or disbursements.
In 2006 Matthew V. Falcone, who was then 50 years old, was crossing Stillwell Avenue nearits intersection with Bay 43rd Street in Brooklyn. Falcone stepped from behind an elevated trainsupport pillar, and was struck by a van driven by the defendant Franklin Williams (hereafter thedriver) and owned by the defendant Verizon New York, Inc. The front right corner of the vanstruck Falcone, who then hit the right side of the van's windshield before coming into contactwith the pavement. Falcone's sister, the plaintiff Doreen Bergamo, commenced this action on hisbehalf as his guardian ad litem, seeking to recover damages for the extensive physical injuriesFalcone sustained as a result of the accident. After a trial on the issue of liability, the jury foundthe defendants 100% at fault in the happening of the accident.
To determine that a jury verdict is not supported by legally sufficient evidence, the courtmust conclude that there is "simply no valid line of reasoning and permissible inferences whichcould possibly lead rational [people] to the conclusion reached by the jury on the basis of theevidence presented" (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). The evidencemust be viewed in the light most favorable to the prevailing party (see Hammond v Diaz, 82 AD3d839 [2011]; Dublis v Bosco, 71AD3d 817 [2010]). Here, the proof established that the driver, inter alia, was speeding andfailed to see that which he should have seen through the proper use of his senses as heapproached the intersection of Stillwell Avenue and Bay 43rd Street, and ultimately struckFalcone (see Franzese v ConsolidatedDairies, Inc., 83 AD3d 775 [2011]; Hammond v Diaz, 82 AD3d at 840; Lynch v Dobler Chevrolet, Inc., 49AD3d 509, 510 [2008]). Accordingly, there was legally sufficient evidence supporting thejury's verdict in favor of the plaintiff and against the defendants. Further, the apportionment of100% fault to the defendants was based on a fair interpretation of the evidence and, thus, was notcontrary to the weight of the evidence (see Hammond v Diaz, 82 AD3d at 840;Nicastro v Park, 113 AD2d 129, 133 [1985]).
Contrary to the defendants' contention, since there was sufficient evidence adduced at trialfrom which the jury could have reasonably concluded that Falcone was within an unmarked crosswalk when the accident occurred, the trial court correctly granted the plaintiff's request to chargethe jury with respect to a motorist's obligation to yield the right-of-way pursuant to 34 RCNY4-04 (b) (1) (see Alli v Lucas, 72AD3d 994, 995-996 [2010]; Vanbenschoten v Pitarys, 284 AD2d 912 [2001];Fan v Buzzitta, 42 AD2d 40 [1973]).
The damages award for past pain and suffering, as reduced by the trial court, and thedamages award for future pain and suffering deviate materially from what would be reasonablecompensation to the extent indicated herein (see CPLR 5501 [c]).
The defendants' remaining contentions are either unpreserved for appellate review or withoutmerit. Chambers, J.P., Roman, Sgroi and Cohen, JJ., concur.