| Shipley v City of New York |
| 2013 NY Slip Op 02562 [105 AD3d 936] |
| April 17, 2013 |
| Appellate Division, Second Department |
| Andre Shipley et al., Respondents, v City of NewYork et al., Appellants. |
—[*1] Ameduri, Galante & Friscia, Staten Island, N.Y. (Marvin Ben-Aron of counsel), forrespondents.
In an action, inter alia, to recover damages for violation of the common-law right ofsepulcher, the defendants appeal (1) from a judgment of the Supreme Court, RichmondCounty (Fusco, J.), entered December 16, 2011, which, upon the granting of theplaintiffs' motion pursuant to CPLR 4401 for judgment as a matter of law on the issue ofliability, and upon a jury verdict on the issue of damages finding that the plaintiff AndreShipley sustained damages in the sum of $500,000 for past pain and suffering, and thatthe plaintiff Korisha Shipley sustained damages in the sum of $500,000 for past pain andsuffering, is in favor of the plaintiffs and against them in the principal sum of$1,000,000, and (2), as limited by their brief, from so much of an order of the same courtdated March 14, 2012, as denied that branch of their motion pursuant to CPLR 4404 (a)which was to set aside the jury verdict on the issue of damages as excessive.
Ordered that the judgment is reversed, on the facts and in the exercise of discretion,with costs, and the matter is remitted to the Supreme Court, Richmond County, for a newtrial on the issue of damages for past pain and suffering only, unless within 30 days afterservice upon the plaintiffs of a copy of this decision and order, the plaintiffs shall serveand file in the office of the Clerk of the Supreme Court, Richmond County, a writtenstipulation consenting to reduce the amount of damages for past pain and suffering fromthe principal sum of $1,000,000 to the principal sum of $600,000 ($300,000 for theplaintiff Andre Shipley and $300,000 for the plaintiff Korisha Shipley), and to the entryof an appropriate amended judgment; in the event that the plaintiffs so stipulate, then thejudgment, as so reduced and amended, is affirmed, without costs or disbursements; and itis further,
Ordered that the appeal from the order is dismissed, as academic, without costs ordisbursements, in light of our determination on the appeal from the judgment.
"The amount of damages to be awarded to a plaintiff for personal injuries is aquestion for the jury, and its determination will not be disturbed unless the awarddeviates materially [*2]from what would be reasonablecompensation" (Graves v NewYork City Tr. Auth., 81 AD3d 589, 589 [2011]; see CPLR 5501 [c]; Chery v Souffrant, 71 AD3d715, 716 [2010]; Keaney vCity of New York, 63 AD3d 794, 795 [2009]). Under the circumstances of thiscase, the jury's award of damages for past pain and suffering deviated materially fromwhat would be reasonable compensation, to the extent indicated herein (seeCPLR 5501 [c]; see alsoEmeagwali v Brooklyn Hosp. Ctr., 60 AD3d 891, 892 [2009]; Duffy v Cityof New York, 178 AD2d 370, 371 [1991]). Rivera, J.P., Dickerson, Leventhal andHinds-Radix, JJ., concur.