Roselli v. City of New York — 161 A.D.2d 324

Majority

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Roland M. Roselli, Respondent, v City of New York, Defendant and Third-Party Plaintiff, and Maplewood Equipment Co., Appellant and Fourth-Party Defendant and Fifth-Party Plaintiff-Appellant. Manhattan Transit Company, Fifth-Party Defendant-Respondent, et al., Third-Party Defendant and Fourth-Party Plaintiff.

Judgment, Supreme Court, New York County (Francis N. Pecora, J.), entered on February 23, 1989, unanimously modified, on the law and the facts, to the extent of reversing the judgment in favor of plaintiff and a new trial ordered on the issue of damages, with $250 costs and disbursements of this appeal to abide the event, and said judgment is otherwise affirmed unless plaintiff, within 20 days after service upon him of a copy of the order herein, with notice of entry, serves and files in the office of the clerk of the trial court, a written stipulation consenting to a reduction of the award to $90,000 and to the entry of an amended judgment in accordance therewith. If plaintiff so stipulates, the

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judgment, as so amended, is affirmed, without costs and without disbursements.

Appeal from the order of said court entered on October 28, 1988 is dismissed as abandoned, without, costs or disbursements.

We find the damages excessive to the extent indicated. We have examined the other issues raised by defendant and find them to be without merit. Concur—Murphy, P. J., Ross, Asch and Wallach, JJ.