Summary
holding that $250,000 was reasonable compensation for future pain and suffering where the plaintiff had surgery for two labral tears in his shoulder
Summary of this case from Nivar v. SadlerOpinion
2012-05-3
Lari KONFIDAN, Plaintiff–Appellant, v. FF TAXI, INC., et al., Defendants–Respondents.
Hogan & Cassell, LLP, Jericho (Michael D. Cassell of counsel), for appellant. *874 Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for respondents.
Hogan & Cassell, LLP, Jericho (Michael D. Cassell of counsel), for appellant. *874 Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for respondents.
Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered on or about August 10, 2010, which, insofar as appealed from as limited by the briefs, granted defendants' motion to set aside the jury verdict awarding plaintiff $400,000 in future pain and suffering to the extent of setting the matter down for a new trial on damages “unless the parties stipulate” to an award of $250,000 for future pain and suffering, unanimously modified, on the law, to the extent of substituting “unless plaintiff stipulates” to the reduced award for “unless the parties stipulate,” and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered on or about October 21, 2010, which, upon reargument, adhered to the prior determination, unanimously dismissed, without costs, as academic.
Plaintiff sustained injuries in a motor vehicle accident, which included two labral tears in his right shoulder, which required surgery, and months of physical therapy, both before and after the surgery. At the time of trial, the 33–year–old plaintiff suffered from pain on a daily basis, which varied in degree, and still needed treatment for his shoulder. Under the circumstances presented, we find that trial court appropriately found that the jury's award of $400,000 for future pain and suffering was excessive and that the amount of $250,000 constituted reasonable compensation for the injuries sustained ( see e.g. DeSimone v. Royal GM, Inc., 49 A.D.3d 490, 856 N.Y.S.2d 628 [2008], lv. dismissed in part and denied in part, 11 N.Y.3d 862, 872 N.Y.S.2d 67, 900 N.E.2d 549 [2008]; Elescano v. Eighth–19th Co., LLC, 17 A.D.3d 250, 794 N.Y.S.2d 316 [2005]; ).
However, we modify to the extent indicated because the only party required to stipulate to the reduced award was plaintiff, as the nonmovant ( see O'Connor v. Papertsian, 309 N.Y. 465, 471, 131 N.E.2d 883 [1956] ).