DAMAGES REDUCED AFTER TRIAL; NO INDICATION OF ACCIDENT VICTIM'S INJURIES

Court: Supreme Court, Appellate Division, Second Department, New York

Case: JING XUE JIANG v. DOLLAR RENT A CAR, INC.

Date: Jan. 10, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens injury lawyer)

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In an action to recover damages for personal injuries, the defendants appeal from a judgment of the Supreme Court, Kings County (Partnow, J.), entered September 9, 2010, which, upon a jury verdict, is in favor of the plaintiff and against them in the principal sums of $3,000,000 for past pain and suffering, $3,000,000 for future pain and suffering over a period of 44 years, and $125,000 for future medical expenses over a period of 44 years.

ORDERED that the judgment is modified, on the facts and in the exercise of discretion, by deleting the provisions thereof awarding damages in the principal sums of $3,000,000 for past pain and suffering and $3,000,000 for future pain and suffering over a period of 44 years; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for a new trial on the issue of damages for past and future pain and suffering, unless within 30 days after service upon the plaintiff of a copy of this decision and order, the plaintiff serves and files in the office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting to reduce the verdict as to damages for past pain and suffering from the principal sum of $3,000,000 to the principal sum of $2,500,000, and for future pain and suffering from the principal sum of $3,000,000 over a period of 44 years to the principal sum of $2,500,000 over a period of 44 years, and to the entry of an appropriate amended judgment accordingly; in the event that the plaintiff so stipulates, then the judgment, as so reduced and amended, is affirmed, without costs or disbursements.

The challenges made by the defendants Dollar Rent A Car, Inc., and Rental Car Finance Corp. to the jury charge and verdict sheet are unpreserved for appellate review. The defendants consented to the jury charge and verdict sheet as given to the jury (see CPLR 4110_b, 4017; Ross v. Mandeville, 45 A.D.3d 755, 757, 846 N.Y.S.2d 276; Kwa v. Roberts, 18 A.D.3d 444, 794 N.Y.S.2d 417; Zawacki v. County of Nassau, 299 A.D.2d 542, 750 N.Y.S.2d 647; see generally Hood v. Avis Rent A Car Sys., Inc., 69 A.D.3d 797, 799, 893 N.Y.S.2d 239; see also Vehicle and Traffic Law Secs. 388, 128).

Contrary to the defendants' contentions, the Supreme Court did not err in declining to strike the testimony of the plaintiff's treating physician, Dr. Jeffrey Klein (see Logan v. Roman, 58 A.D.3d 810, 872 N.Y.S.2d 491; Butler v. Grimes, 40 A.D.3d 569, 570, 833 N.Y.S.2d 398; Krinsky v. Rachleff, 276 A.D.2d 748, 750, 715 N.Y.S.2d 712). A treating physician may give expert opinion testimony and may do so without prior notice pursuant to CPLR 3101(d) (see Hughes v. Webb, 40 A.D.3d 1035, 1037, 837 N.Y.S.2d 698; Hammond v. Welsh, 29 A.D.3d 518, 519, 815 N.Y.S.2d 147; Krinsky v. Rachleff, 276 A.D.2d at 750, 715 N.Y.S.2d 712).

To the extent indicated herein, the damages awarded for past pain and suffering and future pain and suffering deviated materially from what would be reasonable compensation under the circumstances (see CPLR 5501[c]; Belt v. Girgis, 82 A.D.3d 1028, 1029, 920 N.Y.S.2d 151; Mohamed v. New York City Tr. Auth., 80 A.D.3d 677, 678, 915 N.Y.S.2d 599; Stanisich v. New York City Tr. Auth., 73 A.D.3d 737, 738, 900 N.Y.S.2d 422; Firmes v. Chase Manhattan Auto. Fin. Corp., 50 A.D.3d 18, 21, 852 N.Y.S.2d 148; Kihl v. Pfeffer, 47 A.D.3d 154, 156, 848 N.Y.S.2d 200; Flaherty v. Fromberg, 46 A.D.3d 743, 745, 849 N.Y.S.2d 278; Machado v. City of New York, 304 A.D.2d 626, 626_627, 758 N.Y.S.2d 165).

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