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CPLR §2221 and 4404(a) …cont

The jury’s failure to award damages for past pain and suffering that adequately compensates plaintiff for the pain and suffering and loss of enjoyment of life she experienced from the date of the accident to the date when the jury rendered its verdict, which covered a period of approximately six years, constitutes substantial injustice. In addition, the evidence presented by him regarding the permanency of her medical condition was not challenged by medical testimony offered by defendant disputing the permanency of her condition. Therefore, this court also finds that the failure to award damages for future pain and suffering, future loss of earnings, and loss of consortium is against the weight of credible evidence.

The determination that a jury’s award deviates materially from what would be reasonable compensation requires an evaluation of prior awards in similar personal injury cases which is utilized to provide guidance to the court in resolving disputed contentions regarding the adequacy or inadequacy of a verdict. The “deviates materially” standard although directed specifically to reviews undertaken by appellate courts has been applied to the trial court when post trial motions, inter alia, are addressed to excessive or inadequate awards.

The trial court, therefore, in reviewing a jury award must consider the nature of the injury sustained by the plaintiff, plaintiff’s age, the physical condition of the plaintiff prior to the occurrence, the permanency of the injury sustained, plaintiff’s ability to return to gainful employment, the pain, both physical and emotional, experienced and to be experienced in the future, and the extent of future hospitalization. The essence of this process was summarized by the Court of Appeals, where the court observed: “It goes without saying that [the] court, lacking clairvoyance, in evaluating a verdict intended to compensate for a projected long lifetime of pain, suffering, helplessness and all other tangible and intangible losses that were sure to follow, faced an unusually difficult judgmental responsibility, for the fulfillment of which no less than a sophisticated elasticity will ever do. In no two cases are the quality and quantity of such damages identical. As has been pointed out by pragmatists and theorists who have wrestled with the problem of how damages in such cases may justly be arrived at, evaluation does not lend itself to neat mathematical calculation.”

Plaintiff’s motion is therefore granted to the extent of directing a new trial on damages unless within 20 days after services of a copy of this order with notice of entry, defendant stipulates to the entry of a judgment as follows: (a) the sum of $250,000 for past pain and suffering; (b) the sum of $300,000 for past lost wages; (c) the sum of $500,000 for future pain and suffering; (d) the sum of $300,000 for future lost wages, and as to plaintiff’s husband the sum of $50,000.
Accordingly, the court held that the defendant’s cross motion is denied.

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