Opinion
01-03274
Argued May 2, 2002
June 3, 2002
In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Kings County (Hubsher, J.), entered February 27, 2001, as, upon a jury verdict, is in favor of the plaintiff and against them in the principal sum of $400,000 for past pain and suffering and $325,000 for future pain and suffering.
Wallace D. Gossett, Brooklyn, N.Y. (Anita I. Isola of counsel), for appellants.
Bernard H. Broome (Seligson Rothman Rothman, New York, N Y [Martin S. Rothman and Alyne I. Diamond] of counsel), for respondent.
FRED T. SANTUCCI, J.P., ANITA R. FLORIO, GLORIA GOLDSTEIN, SANDRA L. TOWNES, JJ.
ORDERED that the judgment is modified, on the facts and as a matter of discretion, by deleting the provision thereof awarding the plaintiff damages in the sum of $400,000 for past pain and suffering, and granting a new trial with respect to those damages only, with costs to the defendants, unless within 30 days after service upon the plaintiff of a copy of this decision and order, the plaintiff shall file in the office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting to reduce the verdict as to damages for past pain and suffering from $400,000 to $300,000, and to the entry of an appropriate amended judgment accordingly; in the event the plaintiff so stipulates, then the judgment, as so reduced and amended, is affirmed insofar as appealed from, without costs or disbursements.
Contrary to the defendants' contention, the trial court providently exercised its discretion in precluding their purported accident reconstruction expert from testifying at the damages trial after the conclusion of the Frye hearing (see Frye v. United States, 293 F 1013; People v. Mooney, 76 N.Y.2d 827; see also People v. Wernick, 89 N.Y.2d 111; Erbstein v. Savasatit, 274 A.D.2d 445; Doukas v. America on Wheels, Levittown, N.Y., 124 A.D.2d 778; cf. Valentine v. Grossman, 283 A.D.2d 571).
In determining whether an award of damages is excessive, this court must determine whether it deviates materially from what would be reasonable compensation (see CPLR 5501[c]). The award of damages for past pain and suffering is excessive to the extent indicated (see Porcano v. Lehman, 255 A.D.2d 430; Martino v. Triangle Rubber Co., 249 A.D.2d 454; Walsh v. Kings Plaza Replacement Serv., 239 A.D.2d 408).
The defendants' remaining contentions are without merit.
SANTUCCI, J.P., FLORIO, GOLDSTEIN and TOWNES, JJ., concur.