Opinion
July 10, 1967
Judgment of the Supreme Court, Nassau County, dated May 5, 1966, reversed on the facts, and a new trial granted, with costs to abide the event, unless within 30 days after entry of the order hereon plaintiff shall serve and file a written stipulation, consenting to reduce the amount of the verdict in her favor from $45,000 to $25,000 and to entry of an amended judgment accordingly, in which event the judgment, as so reduced and amended, is affirmed, without costs. In our opinion, the amount of the verdict in plaintiff's favor was excessive to the extent indicated. Brennan, Acting P.J., Rabin, Hopkins and Nolan, JJ., concur; Benjamin, J., dissents and votes to affirm the judgment, with the following memorandum: The jury awarded $45,000 to this infant plaintiff for a linear skull fracture and brain damage which aggravated a pre-existing mental retardation. In my opinion, this award is not at all excessive. I see no basis for disturbing the verdict of the jury. If no residuals remained from the linear fracture, the reduced verdict of $25,000 is excessive. If, as my colleagues say, there was at least an aggravation of a mentally retarded state, the award of $45,000 may well be inadequate.