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$10.5 MILLION VERDICT FOR CONSCIOUS PAIN AND SUFFERING DEEMED EXCESSIVE IN THIS PEDESTRIAN TRAFFIC ACCIDENT CASE; PLAINTIFF ASKED TO STIPULATE TO $3 MILLION (FIRST DEPT).

The First Department, in a decision which does not discuss the relevant facts, determined the $10.5 million verdict for conscious pain and suffering was excessive and ordered a new trial unless plaintiff stipulates to $3 million. Plaintiff’s decedent was crossing the street when she was struck by defendant’s van:

The jury’s finding that defendant was solely at fault for the decedent’s death is supported by legally sufficient evidence and is not against the weight of the evidence … . Plaintiff’s evidence established that the decedent was crossing the street with the right-of-way when she was struck by a van operated by defendant’s employee making a left turn. Defendant presented no evidence to rebut plaintiff’s evidence. Its argument that the decedent may have been crossing the street outside of the crosswalk is speculative, given that its employee did not see the decedent until after the accident … . “[T]he position of [the decedent’s] body after impact is not probative as to whether she was walking in the cross-walk prior to being struck” … . In light of this determination, we do not reach defendant’s arguments about the propriety of testimony elicited, and statements made by plaintiff’s counsel, about its hiring practices generally and its hiring of the driver involved in the accident specifically.

We find the award for the decedent’s conscious pain and suffering excessive to the extent indicated … . Martinez v Premium Laundry Corp., 2020 NY Slip Op 01557, First Dept 3-5-20

 

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