Opinion
July 6, 1970
In an action to recover damages for personal injuries and wrongful death, plaintiff administratrix appeals from portions of an order and a judgment of the Supreme Court, Queens County, entered November 25, 1969 and December 16, 1969, respectively as follows: (1) from so much of the order as (a) dismissed the wrongful death cause, upon the trial court's decision at the close of plaintiffs' case upon a jury trial, and (b) granted defendant's motion to set aside the jury verdict in favor of appellant upon the cause for personal injuries of her intestate and for a new trial on that cause (appellant having declined to stipulate to reduce the verdict thereon from $45,000 to $10,000); and (2) from so much of the judgment as dismissed the wrongful death cause. Judgment affirmed insofar as appealed from, without costs. Order modified by adding thereto a provision directing that the new trial shall be limited solely to the issue of damages. As so modified, order affirmed, without costs. In our opinion, absent a showing of causal relationship, the trial court properly dismissed the wrongful death cause ( Tactuk v. Freiberg, 29 A.D.2d 868). In addition, the verdict in the cause of action for personal injuries of the decedent was excessive. It is our view, therefore, that the condition imposed by the trial court, i.e., that appellant stipulate to reduce the verdict on that cause to $10,000, was providently imposed. However, we feel the new trial ordered on that cause should be limited solely to the issue of damages. Hopkins, Acting P.J., Martuscello, Latham, Brennan and Benjamin, JJ., concur.