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Salazar v. B.R. Fries & Associates, Inc.

251 A.D.2d 210 Court N.Y. App. Div. Decision date 1998-06-23 English

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p. 210
Vanessa Salazar, an Infant, by Her Mother and Natural Guardian, Naybie Lopez, et al., Respondents, v B.R. Fries and Associates, Inc., Respondent, and K-Mart Corporation, Appellant. (And a Third-Party Action.)
[674 NYS2d 358]

—Judgment, Supreme Court, New York County (Stephen Ferradino, J.), entered April 24, 1997, after a jury trial, which apportioned liability 100% against defendant K-Mart Corporation, and awarded plaintiff the total amount of $519,062.21, unanimously affirmed, without costs.

In this personal injury action, the trial court’s charge regarding intervening and superseding negligence (see, Derdiarian v Felix Contr. Corp., 51 NY2d 308 , 315) was proper in light of evidence that the handrail upon which plaintiff sustained her

p. 211
injury was redamaged by K-Mart employees, with the knowledge of K-Mart management, subsequent to its repair by defendant B.R. Fries. Nor did the trial court err by permitting the receipt in evidence of five photographs of plaintiff shortly after her accident. The probative value of such evidence, admitted to assist the jury in its assessment of the medical testimony and of plaintiffs pain and suffering, outweighed its potential for prejudice (see, Harvey v Mazal Am. Partners, 79 NY2d 218 , 224; see also, Axelrod v Rosenbaum, 205 AD2d 722 , 723).

K-Mart’s failure to object to the jury charge or verdict sheet renders its argument respecting duplicative pain and suffering awards unpreserved for appellate review (see, Al Malki v Krieger, 213 AD2d 331 , 334-335). In any event, the award for conscious pain and suffering did not deviate materially from reasonable compensation (see, Morales v Jolee Consolidators, 173 AD2d 315 ), in view of the testimony regarding the reimplantation of plaintiffs middle finger on her dominant hand, and her scarring and diminished sensation and motion. Concur — Sullivan, J. P., Rosenberger, Wallach, Tom and Saxe, JJ.

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