54 A.D.2d 930 | N.Y. App. Div. | 1976
In an action for wrongful death and conscious pain and suffering, defendant appeals from a judgment of the Supreme Court, Kings County, entered October 22, 1975, upon a jury verdict, which awarded plaintiff $51,500 on the wrongful death claim, and $20,000 on the conscious pain and suffering claim. Judgment, insofar as it is in favor of plaintiff on the cause of action for conscious pain and suffering, affirmed. Judgment, insofar as it is in favor of plaintiff on the cause of action for wrongful death, reversed, on the law, the said cause of action is severed, and new trial granted with respect to the issue of damages only, with costs to abide the event, unless, within 20 days after entry of the order to be made hereon, plaintiff shall serve and file in the office of the clerk of the trial court a written stipulation consenting to reduce the verdict in her favor on the cause of action for wrongful death to $25,000, and to the entry of an amended judgment accordingly, in which event the judgment, as so reduced and amended, is affirmed, without costs or disbursements. The findings of fact are affirmed. On a prior appeal in this case, we held that awards of $45,000 for wrongful death and $25,000 for the decedent’s conscious pain and suffering over a 29-day period were excessive (Tucker v City of New York, 45 AD2d 1051). While the amount awarded following the second trial for the decedent’s conscious pain and suffering is still higher than the amount which we indicated on the first appeal was appropriate, we are upholding the said award. In so doing, we are influenced