Opinion
570216/07.
Decided September 23, 2008.
Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Irving Rosen, J.), entered November 4, 2004, which granted defendant's motion to set aside a jury verdict and directed a new trial.
Order (Irving Rosen, J.), entered November 4, 2004, modified by reinstating the jury verdict as to liability and directing a new trial solely on the issue of damages, and as modified, affirmed, without costs, unless plaintiff, within 30 days of service of a copy of this order with notice of entry, stipulates to a reduction of the award for past pain and suffering to $200,000 and for future pain and suffering to $300,000, and to entry of an amended judgment accordingly.
PRESENT: McKEON, P.J., SCHOENFELD, HEITLER, JJ.
Plaintiff commenced this negligence action to recover damages for personal injuries sustained when her vehicle collided with a police car allegedly responding to an emergency. After a thorough review of the trial record and with due consideration for the critical functions reserved to a jury as factfinder, we reinstate the jury's verdict with respect to liability and the threshold serious injury question.
The jury, apparently crediting plaintiff's version of events, unanimously found that the police car was being operated recklessly and that such recklessness was a substantial factor in causing plaintiff's injuries. The trial court, in granting defendant's motion for judgment notwithstanding the verdict, concluded otherwise, stating: "the logic of the situation could not be that both police officers would make false reports and commit perjury to protect from criticism or discipline for a relatively minor motor vehicle accident as it then appeared to be." Overturning the jury verdict based on an alternate view of witness credibility was improper ( see Rivera v 4064 Realty Co., 17 AD3d 201). On the trial evidence, which included divergent accounts as to the events which led to the collision, the jury could have reasonably credited the testimony of plaintiff's witnesses that there were no turret lights or sirens operating on the police vehicle when it crossed the double yellow line, drove on the wrong side of the street, and proceeded into the intersection, colliding into plaintiff's vehicle without warning ( see Baines v City of New York, 269 AD2d 309). "In the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict. A trial court may not interfere with the fact-finding function of a jury simply because it disagrees with the verdict or would have evaluated credibility in a different manner [internal citations omitted]" ( Rivera v 4064 Realty Co., 17 AD3d at 203).
Similarly, the jury's finding that plaintiff sustained serious injury within the meaning of the Insurance Law § 5102(d) is supported by legally sufficient evidence and is not against the weight of the evidence. The jury was entitled to credit the testimony of plaintiff's doctor who offered qualitative and quantitative assessments of plaintiff's limitations, which were supported by objective medical proof in the form of positive MRIs and nerve conduction studies ( see Gehrer v Eisner, 19 AD3d 851). Defendant's expert's conclusory opinion that plaintiff's condition was age-related or degenerative in nature was merely another factor to be weighed by the jury.
We find, however, that the aggregate $2 million damage award for past and future pain and suffering is excessive and deviates materially from what is reasonable compensation ( see CPLR 5501[c]). Plaintiff, 61 years old at the time of trial, suffered multiple cervical and lumber disc bulges which progressed to herniated discs, and bilateral temporomandibular joint dysfunction (TMJ) as a result of the 1992 accident. Plaintiff underwent successful surgery for the TMJ in 2000, and while her spinal injuries are permanent in nature, the resulting back and neck pain has been stabilized by prescription medication and physical therapy ( see Sanabria v 718 W. 178th St. LLC, 49 AD3d 426; Vargas v ML 1188 Grand Concourse LP, 24 AD3d 104).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.