Summary
reversing trial court judgment which "erroneously award[ed] preverdict interest on the award of damages for conscious pain and suffering"
Summary of this case from In re Terrorist Attacks on Sept. 11, 2001Opinion
May 20, 1996
Appeal from the Supreme Court, Queens County (Smith, J.).
Ordered that the judgment is reversed, on the facts and as a matter of discretion, with costs, and a new trial is granted on the issue of damages only, 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, Queens County, a written stipulation consenting to reduce the verdict as to damages for conscious pain and suffering which occurred at the time of the accident from the sum of $250,000 to the sum of $100,000, reduce the verdict for pecuniary damages from the sum of $101,468.83 to the sum of $7,525.20, and the net award of damages to the plaintiff from the sum of $275,734.43 to the sum of $153,762.60 ($307,525.20 reduced by 50%), and to the entry of an amended judgment with interest on the award for conscious pain and suffering from June 17, 1994, the date of the verdict. In the event the plaintiff so stipulates the judgment, as so reduced and amended, is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for entry of an appropriate amended judgment accordingly.
"It is well settled that the amount of damages to be awarded for personal injuries is primarily a question of fact for the jury" ( Schare v. Welsbach Elec. Corp., 138 A.D.2d 477, 478). Only where the award "deviates materially from what would be reasonable compensation" can a new trial be granted (CPLR 5501 [c]). On this record we find that the jury verdict with regard to conscious pain and suffering sustained by the plaintiff at the time of the accident "deviate[ed] materially from what would be reasonable compensation" (CPLR 5501 [c]; see, e.g., Higgins v State of New York, 192 A.D.2d 821; Dontas v. City of New York, 183 A.D.2d 868). Moreover, as a matter of law, the provision of the judgment which awarded the plaintiff $46,971.82 for medical expenses as part of the award for pecuniary losses must be reduced to zero, as conceded by the plaintiff, because the first $50,000 in medical expenses constitutes basic economic loss, which is not recoverable ( see, Ellis v. Johnson Motor Lines, 198 A.D.2d 258; Insurance Law § 5102 [a] [1]). Accordingly, only the award of $7,525.20 for funeral expenses is recoverable as pecuniary damages.
Finally, as the plaintiff concedes, the judgment appealed from erroneously awards preverdict interest on the award of damages for conscious pain and suffering ( see, Chase v. New York City Tr. Auth., 121 A.D.2d 425). Ritter, J.P., Thompson, Hart and McGinity, JJ., concur.