Opinion
February 22, 1994
Appeal from the Supreme Court, Kings County (Pizzuto, J.).
Ordered that the judgment is reversed, on the facts and as an exercise of discretion, with costs, and a new trial is granted on the issue of damages for lost future earnings and past and future pain and suffering, unless within 20 days after service upon the plaintiffs of a copy of this decision and order, with notice of entry, the plaintiffs shall serve and file in the office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting to reduce the verdict as to (1) lost future earnings from the sum of $900,000 to $200,000, and (2) past and future pain and suffering from $1,150,000 to $250,000, and to the entry of an amended judgment accordingly; in the event that the plaintiffs so stipulate, then the judgment, as so reduced and amended, is affirmed insofar as appealed from, with costs. The findings of fact on the issues of damages for physical therapy and psychotherapy are affirmed.
We find that the jury's award of $900,000 for lost future earnings to the infant plaintiff, who suffers from a mild form of Erb's palsy, was excessive and based upon the speculative premise that he would not attend college or be employable to any significant degree (see, CPLR 5501 [c]; Cassano v. Hagstrom, 5 N.Y.2d 643, 646; Marmo v. Southside Hosp., 143 A.D.2d 891; Irrizary v. City of New York, 95 A.D.2d 713). The evidence in this case would support an award for lost future earnings in the sum of $200,000.
We also find that the damages award for past and future pain and suffering were excessive to the extent indicated (see, CPLR 5501 [c]; Sutherland v. County of Nassau, 151 A.D.2d 468). Rosenblatt, J.P., Ritter, Copertino and Joy, JJ., concur.