Opinion
January 31, 1992
Appeal from the Supreme Court, Erie County, Wolfgang, J.
Present — Doerr, J.P., Boomer, Green, Pine and Balio, JJ.
Judgment unanimously modified on the law and as modified affirmed without costs and new trial granted on the issue of damages, in accordance with the following Memorandum: Plaintiff John T. Witmer, III was injured while driving his motorcycle to work on September 21, 1984. He began to pass defendant's station wagon on the left just as defendant started a left turn onto Handy Road in the Town of Elma, and he was thrown from his motorcycle. A new trial is required with respect to property damage, pain and suffering, and loss of enjoyment of life. With respect to property damage, it was unrefuted that there was damage to the motorcycle and, pursuant to the court's charge, the jury should have made an award. We further find that the award of $6,000 for pain and suffering and loss of enjoyment of life "deviates materially from what would be reasonable compensation" in light of plaintiff husband's injuries (CPLR 5501 [c]); we therefore grant a new trial on that aspect of damages (see, Zulawski v. Zulawski, 170 A.D.2d 979; Gigliotti v. Wrape, 156 A.D.2d 946, 948).