Lewis v. Mecca

Judgment unanimously reversed, on the facts, without costs, and new trial granted on the issue of damages only unless plaintiff shall within 10 days of the entry of the order herein stipulate to reduce the verdict to $40,000 in which case the judgment is modified accordingly and, as modified, affirmed, without costs of this appeal to either party. Memorandum: On September 25, 1972, David Lewis, nearly 10 years of age, died in an accident in which the defendants Mecca Farms, Marion Foods, Inc., and Seneca Foods Corp. have been held liable in negligence. The only issue raised on appeal is that the jury award of $65,000 is excessive. While the record shows that David Lewis was a healthy child of high intelligence and that he was helpful and affectionate at home, it fails to demonstrate sufficient pecuniary loss to his parents to sustain the award of damages (see Wishart v Andress, 46 AD2d 998). Although it is only in extraordinary circumstances that we will disturb the award of damages by a jury, the verdict here is grossly excessive and must be set aside unless reduced (cf. Livaccari v Zafonte, 48 AD2d 20). (Appeals from judgment of Wayne Supreme Court—wrongful death.) Present—Moule, J. P., Cardamone, Simons, Dillon and Witmer, JJ.