Opinion
12550 Index No. 20271/13E Case No. 2020-00984
12-03-2020
Zobeida HICIANO, Plaintiff–Respondent, v. Barry D. BENSON et al., Defendants, Tremont Electric Co., Inc., Defendant–Appellant.
Weber Gallagher Simpson Stapleton Fires & Newby LLP, New York (Robert A. Suarez of counsel), for appellant. The Altman Law Firm, PLLC, Woodmere (Michael T. Altman of counsel), for respondent.
Weber Gallagher Simpson Stapleton Fires & Newby LLP, New York (Robert A. Suarez of counsel), for appellant.
The Altman Law Firm, PLLC, Woodmere (Michael T. Altman of counsel), for respondent.
Friedman, J.P., Kapnick, Gesmer, Kern, Shulman, JJ.
Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered September 9, 2019, which granted plaintiff's posttrial motion to set aside the jury's apportionment of fault, and for additur with respect to the jury's awards for pain and suffering and loss of enjoyment of life, to the extent that it ordered a new trial unless defendants accepted allocation of 50% fault to both plaintiff and defendants as well as awards of $900,000 for past, and $900,00 for future, pain and suffering, unanimously reversed, on the law and facts, without costs, and the verdict reinstated.
The jury's apportionment of 65% fault to plaintiff and 35% fault to defendants was not against the weight of the evidence where, at the time of the accident, both plaintiff and the driver of the vehicle were in violation of the Vehicle and Traffic Law, neither plaintiff nor the driver saw each other despite having unobstructed views, the driver had begun the process of parallel parking, angling the vehicle in reverse at a 30– to 45–degree angle to the right, and plaintiff, who was jaywalking, walked behind the back of the vehicle from the left (see e.g. Stewart v. Manhattan & Bronx Surface Tr. Operating Auth., 60 A.D.3d 445, 445–446, 875 N.Y.S.2d 26 [1st Dept. 2009] ; see generally CPLR 4404[a] ; Bun Sin Lee v. Pathmark Stores, 1 A.D.3d 219, 219, 767 N.Y.S.2d 94 [1st Dept. 2003] ). The jury's awards for pain and suffering and loss of enjoyment of life ($100,000 past and $50,000 future) did not deviate substantially from what would constitute reasonable compensation for plaintiff's injuries where the jury could have reasonably found that the only injuries plaintiff sustained as a result of the accident were a right radial head fracture that healed without residual impairment or pain, and a sprain or strain of the lumbar spine (see e.g. Vanini v. Ramtol Serv. Corp., 22 A.D.3d 232, 233, 801 N.Y.S.2d 589 [1st Dept. 2005] ; Park v. City of New York, 70 A.D.3d 406, 406, 895 N.Y.S.2d 351 [1st Dept. 2010] ; Pinkowski v. Fuller, 5 A.D.3d 907, 909, 773 N.Y.S.2d 169 [3d Dept. 2004] ; see generally CPLR 5501[c] ).