112 A.D.2d 996 | N.Y. App. Div. | 1985
In claims to recover damages for personal injuries allegedly resulting from the negligent maintenance of an intersection, defendant State of New York appeals from (1) a judgment of the Court of Claims (Lengyel, J.), dated February 28, 1984, which apportioned 40% of the liability to the State and 60% of the liability to nonparty Pietro Sama, and awarded claimants Sally McKenna and Eugene McKenna the principal sum of $276,118.70 and $20,000, respectively (claim No. 1), and (2) a judgment of the same court, also dated February 28, 1984, which awarded claimant Michael Mc-Kenna, represented herein by his guardian ad litem Kathleen Ribaudo, the principal sum of $2,300,000 (claim No. 2).
Judgments affirmed, with one bill of costs payable to respondents appearing separately and filing separate briefs.
The infant claimant and his mother were injured in a traffic accident. The collision occurred when the McKennas’ car made a left turn from a local street onto Route 202. The intersection where the collision occurred was controlled by a stop sign maintained by the State. It is uncontested that two
The trial on liability resulted in a determination that the State was 40% liable, Mr. Sama, the driver of the second vehicle, was 60% liable, and claimant Sally McKenna was without fault. The court awarded damages for lost earnings, permanent injuries and pain and suffering to both Sally and Michael McKenna, as well as damages for future lost earnings and medical and home care expenses of Michael.
On this record, the apportionment of liability is well supported. We note that the claimants are entitled to prevail upon a lesser degree of proof (Schechter v Klanfer, 28 NY2d 228, 230; Noseworthy v City of New York, 298 NY 76, 80). The uncontradicted testimony establishes that it was necessary for claimant Sally McKenna to advance her vehicle onto the traveling surface of Route 202 in order to obtain adequate sight distance. Once she was in that "crash zone”, it would have required an extraordinarily quick response time to allow her to escape to the far lane before impact. The accident could have been avoided, or its seriousness greatly reduced, if Mr. Sama, the driver of the second car had perceived the claimants’ car emerging from the local street and applied his brakes expeditiously. We agree with the finding of the Court of Claims that the testimony of Mr. Sama was "less than credible”, and that his inattentiveness was a major contributing cause of this accident.
As to the damage awards, we find the State’s argument, that Sally McKenna’s award for minimal lost earnings and pain and suffering should be reduced to present value, to be devoid of merit (see, 1 NY PJI2d 2:281, p 632), and we do not find the amount of the award excessive. The State attempts to challenge the award to the infant claimant by offering, in its brief on these appeals, what appear to be nothing more than counsel’s economic projections and predictions of the purported present value of future earnings and expenses. We decline to accept the assumptions and conclusions proffered in the State’s brief in place of expert testimony competent to explain and provide guidance on this very complex issue. Moreover, the trial testimony of claimants’ expert witness was based on projection techniques which seem valid and reasonable, and we note that the Trial Judge made significant