Opinion
No. 570526/11.
2012-09-7
Jill FRANKLIN, Plaintiff–Respondent, v. DIAMOND CLASS CORP. and Pedro R. Mendez, Defendants–Appellants.
Defendants appeal from a judgment of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), entered June 4, 2010, after a jury trial, awarding her damages in the principal sum of $95,000 for past pain and suffering and $343,200 for future pain and suffering.
Present: SCHOENFELD, J.P., TORRES, HUNTER, JR., JJ.
PER CURIAM.
Judgment (Elizabeth A. Taylor, J.), entered June 4, 2010, modified to the extent of vacating that part of the judgment awarding plaintiff damages for future pain and suffering and ordering a new trial only on the issue of those damages, and otherwise affirmed, without costs, unless, within 45 days of service upon plaintiff of a copy of this order with notice of entry, plaintiff stipulates to the entry of an amended judgment reducing the verdict for future pain and suffering to $200,000, in which event, the judgment, as amended, is affirmed, without costs.The jury's resolution of the serious injury and negligence aspects of the case are supported by a fair interpretation of the evidence and, indeed, are not now challenged by defendants on sufficiency or weight of the evidence grounds. The court correctly concluded that a Frye hearing (Frye v. United States, 293 F 1013 [DC Cir1923] ) was warranted, since the theory of causation of defendants' expert was novel ( see Leffler v. Feld, 51 AD3d 410 [2008] ). We also find no abuse of discretion in the court's post-hearing determination to preclude the expert's testimony ( see Coratti v. Wella Corp., 56 AD3d 343 [2008] ), since defendants failed to establish that the biomechanical engineer's theory was generally accepted in the scientific community ( see Santos v. Nicolas, 65 AD3d 941 [2009];Mathis v. New York Health Club, Inc., 288 A.D.2d 56,lv denied98 N.Y.2d 610 [2002] ).
The amount of damages awarded plaintiff for future pain and suffering deviates materially from reasonable compensation to the extent indicated (CPLR 5501 [c]; see Sow v. Arias, 21 AD3d 317 [2005],lv denied5 NY3d 716 [2005] ).