Opinion
January 23, 2001.
Brian J. Isaac, for plaintiffs-respondents-appellants.
Scott C. Watson, Paul Fino, Jr., for defendants-appellants-respondents.
Paul Fino, Jr., for defendant-appellant-respondent.
Judgment, Supreme Court, Bronx County (Alan Saks, J., and a jury), entered October 12, 1999, apportioning liability 60% as against defendant Schindler Elevator and 40% as against third-party defendant Marriott Corp., and awarding plaintiffs, upon their stipulation in lieu of a new trial on damages, damages including $750,000 and $1,500,000 for past and future pain and suffering, respectively, unanimously modified, on the facts, to vacate the award of damages for past and future pain and suffering, and the matter remanded for a new trial on the issues of such damages only, and otherwise affirmed, without costs, unless plaintiffs, within 30 days of service of a copy of this order with notice of entry, stipulate to reduce the awards for past and future pain and suffering to the principal amounts of $350,000, and $600,000, respectively, and to the entry of an amended judgment in accordance therewith.
Before: Sullivan, P.J., Rosenberger, Tom, Ellerin, Friedman, JJ.
Schindler's claim that the trial court erred in refusing to charge res ipsa loquitor with respect to its third-party claim against Marriott is unpreserved, and in any event without merit since Schindler contributed to the happening of the accident. The notice charge as to Schindler conveyed the proper legal standard (see, Rogers v. Dorchester Assocs., 32 N.Y.2d 553), as did the framing of negligence and proximate cause into one interrogatory (see, Tucker v. Elimelech, 184 A.D.2d 636, 638). The awards for pain and suffering deviate materially from what is reasonable compensation to the extent indicated (cf., Faniel v. Marriott Corp., 204 A.D.2d 191; Roundtree v. Manhattan Bronx Surface Tr. Operating Auth., 261 A.D.2d 324, lv denied 94 N.Y.2d 754; Gonzalez v. Rosenberg, 247 A.D.2d 3 37). In the event plaintiffs do not stipulate to the reduction, and opt for a new trial, they should not be allowed to seek damages for future household services stricken by the trial court for lack of proof (see, Outeiral v. Otis Elev., 220 A.D.2d 255). We have considered appellants' other arguments and find them unavailing.