Mofson v. New York City Housing Authority

May 18, 1998
Versions:250 A.D.2d 741
671 N.Y.S.2d 996
1998 N.Y. App. Div. LEXIS 5805

—In an action to recover damages for personal injuries, the defendant appeals from a judgment of the Supreme Court, Kings County (Hutcherson, J.), dated June 10, 1997, which, upon (1) a jury verdict finding the defendant 100% at fault in the happening of *742the accident, (2) a jury verdict awarding the plaintiff $300,000 for past pain and suffering and $1,000,000 for future pain and suffering, (3) an order of the same court dated February 11, 1997, which granted the defendant’s motion pursuant to CPLR 4404 to the extent of directing a new trial on damages unless the plaintiff stipulated to reduce the verdict as to damages for past pain and suffering from $300,000 to $225,000 and damages for future pain and suffering from $1,000,000 to $75,000, and (4) the stipulation of the plaintiff, is in favor of the plaintiff and against it in the principal sum of $300,000.

Ordered that the judgment is modified, on the facts and as a matter of discretion, by awarding the plaintiff the principal sums of $300,000 for past pain and suffering and $150,000 for future pain and suffering; as so modified, the judgment is affirmed, with costs to the respondent.

The court did not err in issuing a missing-witness charge regarding an employee of the defendant who was not called to testify (see, People v Gonzalez, 68 NY2d 424; Jasmin v Raju, 231 AD2d 605). .

Although the plaintiff is a respondent on this appeal, his stipulation to accept the trial court’s reduction of the damage awards entitles him to request full or partial reinstatement up to the sum voted by the jury (see, CPLR 5501 [a] [5]; Papa v City of New York, 194 AD2d 527). The awards are increased to the extent indicated herein.

The parties’ remaining contentions are without merit. Friedmann, J. P., Goldstein, Florio and Luciano, JJ., concur.