Cromas v. Kosher Plaza Supermarket, Inc.

—In an action to recover damages for personal injuries, the defendant appeals from (1) an order of the Supreme Court, Kings County (Martin, J.), dated December 20, 2001, which denied its motion pursuant to CPLR 4404 (a) to set aside a jury verdict on the grounds that it was against the weight of the evidence and that damages awarded were excessive, and (2) a judgment of the same court, entered December 21, 2001, which, upon a jury verdict, is in favor of the plaintiff Joseph Barretta and against it in the principal sum of $450,000 ($225,000 for past pain and suffering and $225,000 for future pain and suffering). Ordered that the appeal from the order is dismissed; and it is further, Ordered that the judgment is reversed, on the facts and as an exercise of discretion, with costs, that branch of the motion which was to set aside the verdict on the ground that the amount of damages was excessive is granted to the extent that a new trial is granted on the issue of damages only, unless, [274] within 30 days after service upon him of a copy of this decision and order, the plaintiff Joseph Barretta shall serve and file in the office of the Clerk of the Supreme Court, Kangs County, a written stipulation consenting to reduce the verdict as to damages for past pain and suffering from $225,000 to $125,000, and as to damages for future pain and suffering from $225,000 to $125,000, and to the entry of an amended judgment accordingly; in the event that the plaintiff Joseph Barretta so stipulates, then the judgment, as so reduced and amended, is affirmed, without costs or disbursements. The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]). On June 20, 1994, the plaintiff Joseph Barretta (hereinafter Barretta) sustained various injuries in an automobile accident, including a herniated disc in the lower back with attendant pain in the lower back and legs. The appellant conceded liability, and a trial on damages only was held. The appellant contends that the verdict was against the weight of the evidence in that Barretta failed to prove that the disc injury was caused by the accident. The appellant further argues that the award of damages was excessive. Contrary to the appellant’s contention, the verdict was based upon a fair interpretation of the evidence (see Nicastro v Park, 113 AD2d 129, 134). However, the awards of $225,000 for past pain and suffering and $225,000 for future pain and suffering materially deviate from what would be reasonable compensation to the extent indicated herein (see CPLR 5501 [c]; Armellino v Fowler Equip. Corp., 297 AD2d 767; Moreno v Chemtob, 271 AD2d 585; Maisonaves v Friedman, 255 AD2d 494). Florio, J.P., S. Miller, Adams and Crane, JJ., concur.