Opinion
May 19, 1994
Appeal from the Supreme Court, New York County (Burton Sherman, J.).
As it was not "utterly irrational" (Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499) for the jury to conclude, based on the evidence viewed in the light most favorable to plaintiff (Matter of Kornblum Metals Co. v. Intsel Corp., 38 N.Y.2d 376, 379), that defendant's negligence was a proximate cause of the slip and fall accident, the jury's verdict on liability should remain undisturbed. Indeed, there was evidence that the piece of fruit upon which plaintiff slipped and fell had a puncture in it as if plaintiff's heel had landed on it when she stepped back. Moreover, there was evidence that indicated that the piece of fruit had been on the floor for at least 35 minutes prior to the accident and thus, the jury could have reasonably determined that defendant had constructive notice of the condition.
While the jury's award was not internally inconsistent, we find that the award for future pain and suffering "deviates materially from what would be reasonable compensation" under the circumstances (CPLR 5501 [c]). Accordingly, we direct a new trial on damages unless plaintiff stipulates to a reduction of the verdict to the extent indicated.
Concur — Ellerin, J.P., Asch, Rubin, Nardelli and Williams, JJ.