82 A.D.2d 909 | N.Y. App. Div. | 1981
In a wrongful death action, plaintiff and defendant J.D. Posillico, Inc., cross-appeal from a judgment of the Supreme Court, Nassau County (Di Paola, J.), entered September 24, 1980, after a jury trial, which is in favor of the plaintiff and against defendants Horn Construction Co., Inc., and J. D. Posillico, Inc., in the principal sum of $63,000. (The jury verdict in plaintiff’s favor was initially $125,000; the trial court reduced it to $70,000 upon posttrial motions to set aside the verdict; the final award of $63,000 was based upon the jury’s finding that the decedent was 10% responsible for the accident.) Judgment modified, on the law, by deleting the first decretal paragraph thereof, which awarded plaintiff damages, and as between plaintiff and defendants Horn Construction Co., Inc., and J.D. Posillico, Inc., action severed and new trial granted limited to the issue of damages only, unless plaintiff serves and files in the office of the clerk of the Supreme Court, Nassau County, a written stipulation consenting to reduce the damage award in his favor to $50,000, which shall be further reduced based upon the jury finding as to responsibility. As so modified, judgment affirmed, without costs