| Keenan v Molloy |
| 2016 NY Slip Op 01646 [137 AD3d 868] |
| March 9, 2016 |
| Appellate Division, Second Department |
[*1]
| Leesa Keenan, Individually and as Administratrix of theEstate of Virginia McKibbin, Deceased, Appellant-Respondent, v DarrenMolloy et al., Respondents-Appellants, et al., Defendants. |
Meagher & Meagher, P.C., White Plains, NY (Merryl F. Weiner andChristopher B. Meagher of counsel), for appellant-respondent.
Lawrence Heisler, Brooklyn, NY (Timothy J. O'Shaughnessy of counsel), forrespondents-appellants.
In an action to recover damages for wrongful death, the plaintiff appeals (1), aslimited by her brief, from so much of an order of the Supreme Court, Kings County(Graham, J.), dated September 23, 2013, as denied her cross motion pursuant to CPLR4111 (c) and 4404 (a) to set aside so much of a jury verdict as awarded zero damages forthe decedent's conscious pain and suffering and pre-impact terror as being inconsistentand contrary to the weight of the evidence, and for a new trial on those issues, and (2)from so much of a judgment of the same court, dated March 26, 2014, as, upon theaforementioned portions of the jury verdict and order, failed to award damages for thedecedent's conscious pain and suffering and pre-impact terror, and the defendants DarrenMolloy and the New York City Transit Authority cross-appeal, as limited by their brief,from so much of the same judgment as, upon so much of the jury verdict finding that thedefendants were 75% at fault in the happening of the accident and that the decedent was25% at fault, and that the plaintiff sustained damages in the sum of $1,200,000 forpecuniary loss, and upon so much of the order as denied their motion pursuant to CPLR4404 (a) to set aside that portion of the jury verdict, is in favor of the plaintiff and againstthem in the principal sum of $900,000 for pecuniary loss, together with interest at therate of 9% per annum as against the defendant Darren Molloy.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is modified, on the law, on the facts, and in the exercise ofdiscretion, by (1) deleting the provision thereof awarding the plaintiff the sum of$900,000 for pecuniary loss, and (2) deleting the provision thereof awarding the plaintiffinterest on the award for pecuniary loss at the rate of 9% per annum as against thedefendant Darren Molloy, and substituting therefor a provision awarding the plaintiffinterest on the award for pecuniary loss at the rate of 3% per annum as against thedefendant Darren Molloy; as so modified, the judgment is affirmed insofar as appealedand cross-appealed from, the order is modified accordingly, and the matter is remitted tothe Supreme Court, Kings County, for a new trial on the issue of damages for pecuniaryloss only, unless within 30 days after service upon the plaintiff of a copy of this decisionand order, with notice [*2]of entry, the plaintiff shallserve and file in the office of the Clerk of the Supreme Court, Kings County, a writtenstipulation consenting to reduce the award of damages for pecuniary loss from theprincipal sum of $900,000 to the principal sum of $600,000, and to entry of an amendedjudgment accordingly; in the event that the plaintiff so stipulates, then the judgment, asso modified, reduced, and amended, is affirmed insofar as appealed and cross-appealedfrom; and it is further,
Ordered that one bill of costs is awarded to the defendants Darren Molloy and theNew York City Transit Authority.
The appeal from the intermediate order must be dismissed because the right of directappeal therefrom terminated with the entry of judgment in the action (see Matter ofAho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order arebrought up for review and have been considered on the appeal from the judgment(see CPLR 5501 [a] [1]).
The plaintiff's decedent was struck and killed by a bus owned the defendant the NewYork City Transit Authority (hereinafter the NYCTA) and operated by the defendantDarren Molloy. The decedent was 65 years old, and survived by three adult daughters,one of whom is the plaintiff. The plaintiff commenced this wrongful death action againstMolloy and the NYCTA (hereinafter together the defendants) on behalf of herself andthe decedent's estate (hereinafter the estate), and sought damages for the conscious painand suffering endured by the decedent prior to her death, including any pre-impact terrorshe may have experienced, as well as damages for pecuniary loss suffered by the plaintiffand her two sisters as a result of their mother's death. Following a combined trial onliability and damages, the jury returned a verdict finding that the defendants were 75% atfault for the happening of the accident and that the decedent was 25% at fault, and found,inter alia, $1,200,000 in damages for pecuniary loss. No damages were awarded for thepre-impact terror suffered by the decedent prior to her impact with the bus, and nodamages were awarded for the decedent's conscious pain and suffering following herimpact with the bus until the time of her death.
The defendants moved in the Supreme Court pursuant to CPLR 4404 (a) to set asideor reduce the verdict finding $1,200,000 in damages for pecuniary loss on the groundsthat the verdict was contrary to the weight of the evidence and excessive. The plaintiffopposed the defendants' motion and cross-moved pursuant to CPLR 4111 (c) and 4404(a) to set aside so much of the verdict as awarded zero damages for the decedent'spre-impact terror and conscious pain and suffering as being inconsistent and contrary tothe weight of the evidence. The court denied both motions. A judgment wassubsequently entered against the defendants jointly and severally which, inter alia,awarded damages for pecuniary loss in the principal sum of $900,000, to account for thejury's finding that the decedent was 25% at fault in the happening of the accident, andprovided that interest would be imposed against Molloy at the rate of 9% per annum. Theplaintiff appeals from the judgment, and the defendants cross-appeal.
Contrary to the plaintiff's contention, the jury's verdict awarding zero damages forthe decedent's conscious pain and suffering and pre-impact terror was not contrary to theweight of the evidence. "A jury verdict on damages may be set aside 'as against theweight of the evidence only if the evidence on that issue so preponderated in favor of theplaintiff that the jury could not have reached its determination on any fair interpretationof the evidence' " (Williams v City of New York, 71 AD3d 1135, 1137[2010], quoting Carter v NewYork City Health & Hosps. Corp., 47 AD3d 661, 663 [2008]; see Lolikv Big v Supermarkets, 86 NY2d 744, 745 [1995]). A cause of action allegingconscious pain and suffering requires proof of cognitive awareness "for at least someperiod of time following an accident" (Cummins v County of Onondaga, 84NY2d 322, 324 [1994]; seeKevra v Vladagin, 96 AD3d 805, 806 [2012]; Williams v City of NewYork, 71 AD3d at 1137; Fa-Shun Ou v New York City Tr. Auth., 309 AD2d781, 781 [2003]). Here, the parties submitted conflicting expert medical opinions as towhether the decedent lost consciousness immediately upon impact with the bus. In lightof this conflicting expert testimony, we find that the evidence did not so preponderate infavor of the plaintiff such that the verdict could not have been reached on any fairinterpretation of the evidence (see Segal v City of New York, 66 AD3d 865, 867 [2009];Ross v Mandeville, 45AD3d 755, 757 [2007]).
[*3] Furthermore,the evidence failed to establish that the decedent "perceived grave injury or death" priorto impact with the bus to support a claim of pre-impact terror (Kevra v Vladagin, 96 AD3d805, 806 [2012]; see Phiri vJoseph, 32 AD3d 922 [2006]; Anderson v Rowe, 73 AD2d 1030[1980]). Although Molloy testified that he heard "a scream" "a few seconds" before he"felt the bus hit something," there was no evidence to establish that the scream heard byMolloy came from the decedent (see Boston v Dunham, 274 AD2d 708, 711[2000]; Torelli v City of New York, 176 AD2d 119 [1991]; see also Kevra vVladagin, 96 AD3d at 806).
" 'In a wrongful death action, an award of damages is limited to fair and justcompensation for the pecuniary injuries resulting from the decedent's death to thepersons for whose benefit the action is brought' " (Hyung Kee Lee v New York Hosp.Queens, 118 AD3d 750, 753-754 [2014], quoting Klos v New York City Tr.Auth., 240 AD2d 635, 637 [1997]; see Gonzalez v New York City Hous.Auth., 77 NY2d 663, 667 [1991]; Johnson v Richmond Univ. Med. Ctr., 101 AD3d 1087,1088 [2012]). The standard of review for a damages award is whether it "deviate[s]materially from what would be reasonable compensation" (Vasquez v County of Nassau,91 AD3d 855, 858 [2012]). Upon a review of the award for pecuniary loss givenhere, we find that the award deviates materially from what would be reasonablecompensation to the extent indicated herein (see CPLR 5501 [c]; Perez v St. Vincents Hosp. &Med. Ctr. of N.Y., 66 AD3d 663 [2009]; Ramos v La Montana Moving& Stor., 247 AD2d 333 [1998]; Glassman v City of New York, 225AD2d 658 [1996]).
Finally, we agree with the defendants that, inasmuch as the entirety of the judgmentis collectable against both of the defendants in whole or in part, the proper rate of interestchargeable against Molloy is 3% (see Public Authorities Law§ 1212 [6]; Weiner v Metropolitan Transp. Auth., 55 NY2d 175[1982]; Williams v City of NewYork, 111 AD3d 420 [2013]; Klos v New York City Tr. Auth., 240AD2d 635 [1997]). Dickerson, J.P., Hall, Austin and Roman, JJ., concur.