Opinion
2001-01691
Argued June 6, 2002
October 1, 2002
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Kings County (Mason, J.), dated December 4, 2000, as denied their motion pursuant to CPLR 4404(a) to set aside a jury verdict as inconsistent or for a new trial, and granted those branches of the separate motions of the defendant third-party plaintiff Fowler Equipment Corporation and the third-party defendant Greco Cousins Concrete Company pursuant to CPLR 4404(a) which were for a new trial on the issue of damages unless the plaintiff Tara Armellino stipulated to reduce the verdict awarding her $165,500 for past loss of services and $82,500 for future loss of services to $55,610 and $0, respectively, and the defendant third-party plaintiff Fowler Equipment Corporation cross-appeals, as limited by its brief, from so much of the same order as denied that branch of its motion pursuant to CPLR 4404(a) which was to reduce the award to the plaintiff Tara Armellino for past loss of services to $23,580.
Martin R. Kramer, Brooklyn, N.Y. (Thomas Torto of counsel), for appellants-respondents.
Braff, Harris Sukoneck, New York, N.Y. (Gerald J. Gunning of counsel), for defendant third-party plaintiff-respondent-appellant.
McMahon, Martine Gallagher, New York, N.Y. (Patrick W. Brophy and Timmothy Gallagher of counsel), for third-party defendant-respondent.
Before: ANITA R. FLORIO, J.P., WILLIAM D. FRIEDMANN, HOWARD MILLER, STEPHEN G. CRANE, JJ.
ORDERED that the order is modified, on the law, by deleting the provision thereof that the plaintiff Tara Armellino stipulate to the sum of $55,610 for past loss of services, and substituting therefor a provision that she stipulate to the sum of $45,069; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements; and it is further,
ORDERED that the time within which the plaintiff Tara Armellino may stipulate to the reduced verdict, as modified herein, is extended to 30 days after service upon her of a copy of this decision and order.
The plaintiff Patrick Armellino was injured while trying to move a chute on the cement truck he drove for his employer, the third-party defendant Greco Cousins Concrete Company (hereinafter Greco). Greco was acting as a subcontractor on a project for which the defendant Fowler Equipment Corporation (hereinafter Fowler) was the general contractor. The injured plaintiff fell on his head and suffered two herniated discs requiring cervical discectomy and fusion surgery. He did not return to work after the accident.
The jury returned a verdict awarding Patrick Armellino $93,600 for past pain and suffering and $46,800 for past lost earnings, and Tara Armellino $165,500 for past loss of services and $82,500 for future loss of services. The trial court reduced Tara Armellino's award to $55,610 for past loss of services and $0 for future loss of services on the ground that the awards "shock[ed] the conscience of the court."
The awards to the plaintiff Tara Armellino by the jury deviated materially from what would be reasonable compensation (see CPLR 5501[c]; Walsh v. Kings Plaza Replacement Serv., 239 A.D.2d 408, 409). Therefore, the court providently exercised its discretion in reducing the verdict as to the plaintiff Tara Armellino. However, the court made a mathematical error in calculating the adjusted past loss of services award to Tara Armellino. The appropriate number should have been $30,069 plus $15,000 or $45,069.
The parties' remaining contentions are unpreserved for appellate review or without merit (see Barry v. Manglass, 55 N.Y.2d 803, 806; Devine v. City of New York, 262 A.D.2d 443, 444).
FLORIO, J.P., FRIEDMANN, H. MILLER and CRANE, JJ., concur.