| Espinal v Vargas |
| 2012 NY Slip Op 09023 [101 AD3d 1072] |
| December 26, 2012 |
| Appellate Division, Second Department |
| Ysidra Espinal, Respondent, v Waldo J. Vargas,Appellant. |
—[*1] Michael A. Cervini, Elmhurst, N.Y. (Robin Mary Heaney of counsel), forrespondent.
In an action, inter alia, to recover damages for wrongful death and conscious pain andsuffering, etc., the defendant appeals from a judgment of the Supreme Court, Queens County(Lane, J.), dated June 10, 2011, which, upon the granting of the plaintiff's motion pursuant toCPLR 4401 for judgment as a matter of law on the issue of liability made at the close of theevidence, and upon a jury verdict on the issue of damages awarding the plaintiff, individually, theprincipal sum of $24,000 for economic loss and, as administrator for the estate of Elvia L.Collado, the principal sums of $250,000 for the decedent's conscious pain and suffering and$275,000 in punitive damages, is in favor of the plaintiff and against him in the principal sum of$549,000.
Ordered that the judgment is affirmed, with costs.
Contrary to the defendant's contention, there was sufficient evidence to support the award forconscious pain and suffering. The plaintiff's expert testified that the decedent was conscious for39 minutes between the time the accident occurred and the time she was placed under anesthesiafor surgery. During that time, the decedent experienced abdominal bleeding and sharp pain frombroken ribs which perforated her lungs, and she was "moaning" and "groaning" in response toquestioning. Accordingly, we find that a verdict awarding damages for conscious pain andsuffering was warranted (see McDougald v Garber, 73 NY2d 246 [1989]; Ramos vShah, 293 AD2d 459 [2002]).
Moreover, under the circumstances of this case, it cannot be said that the jury's award forconscious pain and suffering was excessive, since it did not deviate materially from what wouldbe reasonable compensation (see CPLR 5501 [c]).
The defendant's remaining contentions are without merit. Skelos, J.P., Hall, Roman andCohen, JJ., concur.