Paek v. City of New York

208 Judgment, Supreme Court, New York County (Carol E. Huff, J., and a jury), entered March 3, 2004, inter alia, awarding plaintiff $5 million for future pain and suffering over 40 years upon plaintiffs stipulation reducing the award therefor from $9 million, $6,858,672 for future lost earnings and $657,000 for past lost earnings, modified, on the facts, to vacate the awards for future pain and suffering and past and future lost earnings and remand for a new trial solely as to such damages, and otherwise affirmed, unless plaintiff, within 30 days of service of a copy of this order, with notice of entry, stipulates to reduce the awards for future pain and suffering to $3,000,000, for future lost earnings to $5,278,119 and for past lost earnings to $466,652, and to the entry of an amended judgment in accordance therewith. The trial court properly exercised its discretion in precluding defendant from calling a witness that it produced without notice on the final day of testimony, a day added by the court at defendant’s request in order to hear testimony on another matter (see Feldsberg v Nitschke, 49 NY2d 636, 643 [1980]). Moreover, defendant had failed to exercise due diligence in securing the witness’s attendance (see Herbert v Edwards Super Food Stores-Finast Supermarkets, 253 AD2d 789 [1998]), and the proposed testimony was not material. The jury’s finding that plaintiff was not comparatively negligent is supported by the weight of the evidence, which shows that the metal spike over which plaintiff tripped and fell was thin, dark, protruded only a few inches from the sidewalk, and was not plainly visible at night (see Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 516-517 [1980]; McDermott v Coffee Beanery, Ltd., 9 AD3d 195, 206 [2004]). While plaintiff sustained a severe brain injury resulting in, inter alia, permanent cognitive impairment affecting her memory, concentration, organizational ability and emotional response, the award of $5 million for future pain and suffering deviates materially from what is reasonable compensation under the circumstances, and we accordingly reduce the award therefor as indicated (CPLR 5501 [c]; Reed v City of New York, 304 AD2d 1, 6-7 [2003], lv denied 100 NY2d 503 [2003]). The dissent’s downplay of Reed as an appropriate damage analogue does not withstand scrutiny. In addition to her myriad injuries, which prevented her from holding a simple job for more than a few months, the plaintiff there suffered seizures, which she would likely suffer in the future, as a result of the accident. Furthermore, she was found to be demented due to memory loss and an inability to perform thought-control functions. 209 Her experts agreed that her postaccident condition posed a risk of deteriorating into Parkinson’s and/or Alzheimer’s disease. The jury award of $9.275 million for brain injuries (Flynn v General Motors Acceptance Corp., 179 Misc 2d 555 [1998]), cited by the dissent, is hardly an exemplar for us on appellate review. The dissent justifies its reliance on Flynn on the ground that “the voice of the jury is the voice of the community, and it should not be so cavalierly ignored.” Of course, that is not the standard of appellate review. An award is excessive if it deviates materially from what would be reasonable compensation (see CPLR 5501 [c]). The standard for that determination is set by judicial precedent, not juries. The award for future lost earnings based upon projected annual earnings of $150,000 is speculative in view of evidence that plaintiff never interviewed for and was never offered the position that would have paid her that amount (cf. Cranston v Oxford Resources Corp., 173 AD2d 757, 758 [1991], lv denied 78 NY2d 860 [1991]). However, the evidence does show that plaintiff had bright career prospects and that her annual salary would have increased from the $75,000 she was earning at the time of the accident. Based upon the estimates provided by plaintiffs economist, an award of $5,278,119 constitutes reasonable compensation for future lost earnings. The jury’s award for past lost earnings exceeds the $466,652 calculated by her own economist and otherwise lacks support, and we modify accordingly. Concur—Sullivan, Nardelli and Williams, JJ.