| Sweet v Rios |
| 2014 NY Slip Op 00341 [113 AD3d 750] |
| January 22, 2014 |
| Appellate Division, Second Department |
| Melody Sweet, Respondent, v Estella Rios et al.,Appellants. |
—[*1] Evan M. Foulke, Goshen, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal from ajudgment of the Supreme Court, Dutchess County (Brands, J.), entered May 2, 2012,which, upon a jury verdict and upon an order of the same court dated July 14, 2011,denying their motion pursuant to CPLR 4404 to set aside the jury verdict as contrary tothe weight of the evidence and for a new trial, is in favor of the plaintiff and against themin the total sum of $959,882.78.
Ordered that the judgment is modified, on the facts and in the exercise of discretion,by deleting the second, third, fourth, fifth, sixth, seventh, and ninth decretal paragraphsthereof, so much of the order dated July 14, 2011, as denied that branch of thedefendants' motion pursuant to CPLR 4404 which was to set aside as excessive thedamages awarded for future pain and suffering is vacated, and that branch of the motionis granted; as so modified, the judgment is affirmed, without costs or disbursements, theorder dated July 14, 2011, is modified accordingly, and the matter is remitted to theSupreme Court, Dutchess County, for a new trial on the issue of damages for future painand suffering, 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 theSupreme Court, Dutchess County, a written stipulation consenting to reduce the verdictas to damages for future pain and suffering from the principal sum of $620,000 to theprincipal sum of $465,000, and to the entry of an appropriate amended judgment; in theevent that the plaintiff so stipulates, the judgment, as so reduced and amended, isaffirmed, without costs or disbursements.
On June 25, 2007, the plaintiff was injured when a vehicle owned by the defendantEstella Rios and operated by the defendant Christopher Rios suddenly pulled out of aparking space on the side of the road and collided with her vehicle. At trial, the plaintiffpresented evidence that she sustained, as a result of the accident, protrusions of the discsat C4-5 and C5-6, and disc bulges at L4 and L5-S1 with right-sided radiculopathy,causing her chronic pain in her lower back, and pain radiating from her right hip down tothe bottom of her foot where she has a "needles and pins" sensation requiring her to use acane. She also suffered a left shoulder superior labrum anterior-posterior lesion whichrequired arthroscopic surgery and resulted in restricted mobility, and a right [*2]knee meniscus tear which required arthroscopic surgerywhich was "largely successful."
Although the trial court suggested it would declare a mistrial and grant a new trial ifeither party moved for one so that certain matters could be "cleaned up," the defendantsdeclined to seek a mistrial prior to the verdict. Accordingly, the defendants waived thepotential remedy of a mistrial, and cannot argue on appeal that a mistrial should havebeen declared (see Rodriguez vValentine, 20 AD3d 558, 559 [2005]; Bonilla v New York City Health &Hosps. Corp., 229 AD2d 371 [1996]; see also CPLR 4402; Tirado v Miller, 75 AD3d153, 159 [2010]).
Contrary to the defendants' contention, the trial court providently exercised itsdiscretion in permitting the plaintiff to reopen her case to call her previously unavailabletreating chiropractor as a witness and to introduce his complete office records intoevidence. A trial court, in the exercise of discretion and for sufficient reasons, may allowa party to reopen and correct defects in evidence that have inadvertently occurred (see Kay Found. v S & F TowingServ. of Staten Is., Inc., 31 AD3d 499, 501 [2006]; Kennedy v PeninsulaHosp. Ctr., 135 AD2d 788, 790-791 [1987]; see also Feldsberg v Nitschke,49 NY2d 636, 643-644 [1980]). When a motion to reopen is made, the trial court shouldconsider whether the movant has provided a sufficient offer of proof, whether theopposing party is prejudiced, and whether significant delay in the trial will result if themotion is granted. Here, the plaintiff proffered a sufficient reason for the request andspecified the evidence she would present if permitted to reopen, the defendants were notprejudiced by the presentation of such proof, and there was no undue delay (see KayFound. v S & F Towing Serv. of Staten Is., Inc., 31 AD3d at 501; Frazier vCampbell, 246 AD2d 509, 510 [1998]; Veal v New York City Tr. Auth., 148AD2d 443, 444 [1989]).
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 from what would be reasonable compensation (see CPLR5501 [c]; Brown v Elliston,42 AD3d 417 [2007]). Under the circumstances presented herein, the jury award of$620,000 for future pain and suffering ($20,000 per year for 31 years) deviatedmaterially from what would be reasonable compensation (see CPLR 5501 [c]; Zimnoch v Bridge View Palace,LLC, 69 AD3d 928 [2010]; Conte v City of New York, 300 AD2d 430[2002]). An award of $465,000 ($15,000 per year for 31 years), would constitutereasonable compensation (seeJohnson v Freihofer Baking Co., Inc., 16 AD3d 461 [2005]).
The defendants' remaining contention is without merit. Skelos, J.P., Dickerson,Cohen and Hinds-Radix, JJ., concur.