Summary
In Schare v. Welsbach Electric Corp., 138 A.D.2d 477, 526 N.Y.S.2d 25 (2d Dep't 1988), the Appellate Division reversed the trial court's order, holding that it inappropriately exercised its discretion in setting aside a jury verdict of $65,000 and entering a judgment of $125,000 based on plaintiff's carpal tunnel syndrome.
Summary of this case from D'Amato v. Long Island R. Co.Opinion
March 14, 1988
Appeal from the Supreme Court, Kings County (I. Aronin, J.).
Ordered that the order is reversed on the facts, with costs, the motion is denied, the verdict is reinstated and the matter is remitted for entry of a judgment in accordance with the jury verdict.
This action arises from an automobile accident where Welsbach's truck struck a wood plank which, in turn, struck the plaintiff, a pedestrian. The plaintiff, a 68-year-old woman, was hospitalized for 12 days and was given a discharge diagnosis of a fractured wrist, fractured foot and "multiple injuries". The only injury disputed at trial was an alleged "herniated disk [sic]" which the plaintiff contends was caused by the accident.
The trial court set aside the $65,000 verdict based solely upon the uncontradicted evidence of "carpal tunnel syndrome", a complication of the type of wrist fracture suffered by the plaintiff. The condition was correctable by surgery which the plaintiff declined. Furthermore, evidence was adduced from which the jury could reasonably have concluded that the back condition complained of by the plaintiff was preexisting and/or a natural consequence of the aging process.
It is well settled that the amount of damages to be awarded for personal injuries is primarily a question of fact for the jury (see, Jandt v. Abele, 116 A.D.2d 699; Senko v. Fonda, 53 A.D.2d 638). On the record before us, the $65,000 awarded by the jury neither is so inadequate as to shock the conscience of this court (see, e.g., Maze v. DiBartolo, 130 A.D.2d 720; Knight v. Long Is. Coll. Hosp., 106 A.D.2d 371; O'Connor v. Roth, 104 A.D.2d 933, appeal dismissed 64 N.Y.2d 934), nor "deviates materially from what would be reasonable compensation" (cf., CPLR 5501 [c]). Therefore, the court improperly exercised its discretion in setting aside the verdict as inadequate. Kunzeman, J.P., Eiber, Kooper and Harwood, JJ., concur.