Espinal v. Vargas — 101 A.D.3d 1072

Majority

p. 1072

Ysidra Espinal, Respondent, v Waldo J. Vargas, Appellant.

[956 NYS2d 504]

Contrary to the defendant’s contention, there was sufficient evidence to support the award for conscious pain and suffering. The plaintiffs expert testified that the decedent was conscious for 39 minutes between the time the accident occurred and the time she was placed under anesthesia for surgery. During that time, the decedent experienced abdominal bleeding and sharp pain from broken ribs which perforated her lungs, and she was “moaning” and “groaning” in response to questioning. Accordingly, we find that a verdict awarding damages for conscious pain and suffering was warranted (see McDougald v Garber, 73 NY2d 246 [1989]; Ramos v Shah, 293 AD2d 459 [2002]).

Moreover, under the circumstances of this case, it cannot be

p. 1073

said that the jury’s award for conscious pain and suffering was excessive, since it did not deviate materially from what would be reasonable compensation (see CPLR 5501 [c]).

The defendant’s remaining contentions are without merit. Skelos, J.P., Hall, Roman and Cohen, JJ., concur.

Cases cited

McDougald v. Garber 73 NY2d 246 N.Y. 1989-02-21 p. 1072
Ramos v. Shah 293 AD2d 459 N.Y. App. Div. 2002-04-01 p. 1072