Grassi v. Kamalian

In an action to recover damages for medical malpractice, the plaintiff appeals on the ground of inadequacy from an amended judgment of the Supreme Court, Orange County (Barone, J.), dated July 14, 1994, which is in his favor and against the defendants in the principal sum of only $70,000 for past pain and suffering. Ordered that the amended judgment is affirmed, with costs. The plaintiff contends that the jury’s failure to award him damages for future pain and suffering is inconsistent with its award of damages for past pain and suffering. This issue was not raised before the trial court discharged the jury. As a result, the trial court had no opportunity to address it or to take any corrective action. Accordingly, it is not preserved for appellate review (see, Barry v Manglass, 55 NY2d 803; Duran v Heller, 203 AD2d 414; Strauss v Huber, 161 AD2d 629; Aurilia v Greco, 186 AD2d 773). The Supreme Court properly denied the plaintiff’s motion [345] for a new trial on the issue of damages. The jury’s verdict is not irrational (see, Land v City of New York, 177 AD2d 477; O’Boyle v Avis Rent-A-Car Sys., 78 AD2d 431; see also, Casey v Slattery, 213 AD2d 890), nor deviated materially from what would be reasonable compensation (see, CPLR 5501 [c]; cf, Behar v Ordover, 105 AD2d 766). The plaintiffs remaining contentions are either unpreserved for appellate review, academic, or without merit. Miller, J. P., Hart, Friedmann and Florio, JJ., concur.