Opinion
2002-11596.
Decided March 8, 2004.
In an action to recover damages for personal injuries, etc., the defendant City of New York appeals from a judgment of the Supreme Court, Kings County (Held, J.), dated December 13, 2002, which, upon a jury verdict on the issue of liability finding it 100% at fault in the happening of the accident, and upon the granting of its motion to set aside the damage awards as excessive only to the extent of reducing the jury verdict on the issue of damages in favor of the plaintiff Carmen Blas from the sum of $444,888.33 to $250,000 for past pain and suffering, and from the sum of $400,850 to $150,000 for future pain and suffering, is in favor of that plaintiff and against it in the principal sum of $400,000.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Grace Goodman of counsel), for appellant.
Kenneth J. Ready, Mineola, N.Y. (Shayne, Dachs, Stanisci, Corker Sauer [Jonathan A. Dachs] of counsel), for respondents.
Before: FRED T. SANTUCCI, J.P., ANITA R. FLORIO, ROBERT W. SCHMIDT, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the judgment is reversed, on the facts and as a matter of discretion, with costs, and a new trial is granted on the issue of damages only, unless within 30 days after service upon the plaintiffs of a copy of this decision and order, the plaintiff Carmen Blas shall serve and file with the office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting to further reduce the verdict as to damages for past pain and suffering from the sum of $250,000 to the sum of $125,000, and to further reduce the verdict as to damages for future pain and suffering from the sum of $150,000 to the sum of $75,000, and to the entry of an appropriate amended judgment accordingly; in the event that the plaintiff Carmen Blas so stipulates, then the judgment, as so further reduced and amended, is affirmed, without costs or disbursements.
Contrary to the appellant's contention, the Supreme Court properly determined that whether the markings on the pothole map entered into evidence gave the appellant the required prior written notice of the sidewalk defect where the injured plaintiff fell was an issue for the jury. "Where there are factual disputes regarding the precise location of the defect that allegedly caused a plaintiff's fall, and whether the alleged defect is designated on the map, the question should be resolved by a jury" ( Quinn v. City of New York, 305 A.D.2d 570, 571; see Patane v. City of New York, 284 A.D.2d 513; David v. City of New York, 267 A.D.2d 419).
The damage awards for past and future pain and suffering, as reduced by the Supreme Court, deviate materially from what would be reasonable compensation to the extent indicated herein ( see CPLR 5501[c]); Conte v. City of New York, 300 A.D.2d 430; Stylianou v. Calabrese, 297 A.D.2d 798; Jansen v. Raimondo Son Constr. Corp., 293 A.D.2d 574; Mojica v. City of New York, 199 A.D.2d 250).
The appellant's remaining contention is unpreserved for appellate review and, in any event, without merit.
SANTUCCI, J.P., FLORIO, SCHMIDT and MASTRO, JJ., concur.