O'Brien v. Mulcahy

—In an action to recover damages for personal injuries, the defendant appeals from a judgment of the Supreme Court, Kings County (I. Aronin, J.), entered February 15, 1994, which, upon a jury verdict on the issue of damages, is in favor of the plaintiff and against the defendant in the principal sum of $200,000. Ordered the judgment is modified, on the facts and as a matter of discretion, by deleting the first decretal paragraph thereof and substituting therefor a provision granting a new trial on the issue of damages; as so modified, the judgment is affirmed, with costs to the appellant unless within 30 days after service upon the plaintiff of a copy of this decision and order, with notice of entry, the plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting to decrease the verdict as to damages from the sum of $200,000 to $75,000 (representing an apportionment of $30,000 for past pain and suffering and $45,000 for future pain and suffering), and to the entry of an appropriate amended judgment in the principal sum of $75,000 accordingly. In the event that the plaintiff so stipulates, then the judgment, as so reduced and amended, is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for entry of an appropriate amended judgment accordingly. Although the plaintiff submitted evidence of "serious injury” sufficient to have raised an issue of fact for the jury (see, Guerra v Fuez, 145 AD2d 873), we find the damages awarded, in light of the facts, deviate materially from what would be reasonable compensation (see, CPLR 5501 [c]; Hulsen v Morrison, 206 AD2d 459). 400 We have considered the defendant’s remaining contentions and find them to be without merit. Rosenblatt, J. P., Ritter, Copertino and Hart, JJ., concur.