Opinion
November 19, 1963
Order, entered on January 3, 1963, to the extent it granted infant plaintiff's post-trial motion to set aside verdict awarded infant plaintiff as inadequate and ordered new trial of infant plaintiff's cause of action unless defendant stipulated to increase verdict to $7,500, in which event motion was denied, unanimously reversed on the law and on the facts, without costs, otherwise it is affirmed, the motion is denied, without costs, the jury verdict is reinstated and judgment is directed to be entered thereon. The seven-year-old plaintiff was awarded $2,800 for personal injuries sustained when hit by defendant's automobile. The infant's father was awarded $2,011 for expenses and loss of his son's services. The father had incurred $811.10 in medical expenses to the date of trial. The medical witness for defendant testified that the residue of the injuries sustained was of no significance. The record contains some corroboration for this view, including a few statements in the hospital records introduced which indicated exclusively minor injuries. Though this evidence was contradicted, the jury could have favored defendant's version. Moreover, there is nothing necessarily inconsistent between the awards to the son of $2,800 for his suffering and disability and to the father for $811.10 in medical expenses plus about $1,200 for loss of services and possibly other expenses. Under the circumstances, the motion to set aside the verdict should have been denied (e.g., Rogeau v. Tutino, 18 A.D.2d 614; cf. Laranjo v. Malik, 11 A.D.2d 863; Coleman v. Brooklyn Queens Tr. Corp., 252 App. Div. 215, 216). The infant plaintiff's post-trial motion for reargument of the denial to set aside the verdict for inadequacy was timely (see CPLR, § 2211, rule 4405; Civ. Prac. Act, § 113; Rules Civ. Prac., rule 60-a). Settle order on notice.
Concur — Breitel, J.P., Rabin, McNally, Eager and Steuer, JJ.