| Swatland v Kyle |
| 2015 NY Slip Op 05801 [130 AD3d 1453] |
| July 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| Candace Swatland, Appellant, v John R. Kyleet al., Respondents. |
Brown Chiari LLP, Lancaster (Nelson E. Schule, Jr., of counsel), forplaintiff-appellant.
Hinshaw & Culbertson LLP, Chicago, Illinois (Kimberly A. Jansen, of theIllinois Bar, admitted pro hac vice, of counsel), for defendants-respondents.
Appeal from a judgment of the Supreme Court, Erie County (James P. Punch, A.J.),entered June 3, 2014. The judgment awarded plaintiff money damages in the amount of$30,000 for past pain and suffering and in the amount of $15,000 for future pain andsuffering.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by granting the posttrial motion in part and setting aside the verdict with respectto damages for past and future pain and suffering, and as modified the judgment isaffirmed without costs, and a new trial is granted on those elements of damages onlyunless defendants, within 20 days of service of a copy of the order of this Court withnotice of entry, stipulate to increase the award of damages for past pain and suffering to$150,000 and for future pain and suffering to $50,000, in which event the judgment ismodified accordingly, and as modified the judgment is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries sheallegedly sustained in a motor vehicle accident. Following a trial, the jury found thatplaintiff sustained a serious injury under the significant limitation of use category setforth in Insurance Law § 5102 (d) and awarded damages for past medicalexpenses, past pain and suffering, and future pain and suffering.
We reject plaintiff's contention that Supreme Court erred in limiting thecross-examination of defendants' medical expert with respect to fees he received inconnection with referrals made by defendants' former counsel. The nature and extent ofcross-examination is entrusted to the trial court's discretion (see Badr v Hogan,75 NY2d 629, 634 [1990]; Siemucha v Garrison, 111 AD3d 1398, 1399-1400 [2013]),and we perceive no abuse of discretion here.
We agree with plaintiff, however, that the court erred in denying that part of herposttrial motion seeking increases in the damage awards for past and future pain andsuffering or, in the alternative, a new trial on damages. The jury found that plaintiffsustained a serious injury under the significant limitation of use and 90/180-daycategories (see Insurance Law § 5102 [d]), but awarded only$30,000 for past pain and suffering and $15,000 for future pain and suffering. In view ofplaintiff's testimony and the medical evidence that plaintiff sustained herniated discs atC5-C6 and C6-C7 that required surgery, we conclude that the award of damages deviatesmaterially from what would be reasonable compensation for the injuries she sustained(see CPLR 5501 [c]). In our view, $150,000 for past pain and suffering and$50,000 for future pain and suffering are the minimum amounts the jury could haveawarded as a matter of law based on the evidence at trial (see Orlikowski v CornerstoneCommunity Fed. Credit Union, 55 AD3d 1245, 1247 [2008], lvdismissed 11 NY3d 915 [2009]). We therefore modify the judgment accordingly,and we grant a new trial on damages for past and future pain and suffering only unlessdefendants, within 20 days of service of a copy of the order of this Court with notice ofentry, stipulate to increase the award of damages for past pain and suffering to $150,000and for future pain and suffering to $50,000, in which event the judgment is modifiedaccordingly. Present—Smith, J.P., Centra, Peradotto, Sconiers and Whalen,JJ.