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Schmidt v. Bartolotta

17 A.D.3d 1162 Court N.Y. App. Div. Decision date 2005-04-29 English

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p. 1162
Theresa M. Schmidt et al., Respondents, v Christopher Bartolotta, Appellant.
[794 NYS2d 551]

Appeal from a judgment (denominated order) of the Supreme Court, Erie County (John A. Michalek, J.), entered March 31, 2004 in a personal injury action. The judgment was entered in favor of plaintiffs upon a jury verdict in the amount of $362,509.57.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action to recover damages for injuries sustained by Theresa M. Schmidt (plaintiff) in a motor vehicle accident. Supreme Court properly denied defendant’s motion pursuant to CPLR 4404 (a) seeking to set aside the verdict as against the weight of the evidence, or in the alternative to reduce the award of damages for future pain and suffering. With respect to whether plaintiff sustained a serious injury as defined in Insurance Law § 5102 (d), we conclude that,

p. 1163
although there was conflicting medical evidence, the evidence does not so preponderate in defendant’s favor that the verdict could not have been reached upon any fair interpretation of the evidence (see Lolik v Big V Supermarkets, 86 NY2d 744 , 746 [1995]; McLoughlin v Hamburg Cent. School Dist., 227 AD2d 951 [1996], lv denied 88 NY2d 813 [1996]). As a result of the motor vehicle accident, plaintiff sustained injuries to her back and neck and preexisting injuries to her back were aggravated. The job duties of plaintiff were significantly modified to accommodate her pain, and she was no longer able to perform her household duties. Furthermore, plaintiff presented evidence that she developed carpal tunnel syndrome as a result of the accident and that she suffers from debilitating headaches caused by the injury to her neck. We therefore further conclude that the award of damages for future pain and suffering in the amount of $275,000 for a period of 30 years does not deviate materially from what would be reasonable compensation (see CPLR 5501 [c]; Haick v Castaldo [appeal No. 1], 16 AD3d 1111 [2005]; see generally Komforti v New York City Tr. Auth., 292 AD2d 569 , 569-570 [2002]; cf. Deyo v Laidlaw Tr., 285 AD2d 853 , 854 [2001]; Armbruster v Buffalo China, 247 AD2d 880 , 882 [1998]). Present—Hurlbutt, J.P., Scudder, Gorski, Pine and Lawton, JJ.

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