Davis v. Schirck

—Order unanimously affirmed with costs. Memorandum: Supreme Court properly set aside as against the weight of the evidence the verdict awarding plaintiffs $10,000 for the past pain and suffering of Kenneth R. Davis (plaintiff) and $2,000 for his wife’s past loss of his services and no damages for future pain and suffering or for future loss of services. The court granted a new trial on damages unless defendant agreed to pay plaintiffs an additional $10,000. The proof of permanency with respect to the injury to plaintiff’s knee was uncontroverted. Therefore, viewing the evidence in the light most favorable to defendant, we conclude that the failure to award damages for future pain and suffering deviates materially from what would be reasonable compensation (see, CPLR 5501 [c]; Kriesel v May Dept. Stores Co., 261 AD2d 837). (Appeal from Order of Supreme Court, Monroe County, Polito, J. — Set Aside Verdict.) Present — Green, J. P., Pine, Pigott, Jr., Scudder and Callahan, JJ.