Opinion
December 6, 1990
Appeal from the Supreme Court, New York County (William F. McDermott, J.).
Trial Term properly declined defendant Coleman's request to charge PJI 2:85, "Motorist's Duty Re Maintenance — To Passenger", and PJI 2:14, "Emergency Situation", since no evidence was adduced to support these charges. With respect to a motorist's duty to his passenger, defendant offered no evidence to establish that the accident was caused by a mechanical defect (see, Gordon v. State of New York, 57 Misc.2d 731, 736). Likewise, there was neither a claim nor evidence that Coleman had failed to exercise best judgment as between choice of alternatives, as a predicate to the emergency situation charge (see, Amaro v. City of New York, 40 N.Y.2d 30, 36; Rowlands v. Parks, 2 N.Y.2d 64, 67-68).
We find that the award of damages was inadequate in view of the nature and extent of plaintiff's injuries and consequently we have conditioned the avoidance of a new trial as to damages upon stipulation by both defendants to an increased amount.
Concur — Kupferman, J.P., Rosenberger, Asch and Smith, JJ.