Opinion
Nos. 3836, 3836A.
June 5, 2008.
Orders, Supreme Court, New York County (Emily Jane Goodman, J.), entered August 17, 2006 and September 27, 2006, which, insofar as appealed from as limited by the briefs, granted defendant's motion to set aside the verdict awarding plaintiff $50,000 in past pain and suffering, $250,000 for future pain and suffering and $1,000 for medical expenses, to the extent of directing a new trial on the issue of damages for future pain and suffering only unless plaintiff stipulates to reduce the award for future pain and suffering from $250,000 to $150,000, unanimously modified, on the facts, to reduce the remittitur, to which plaintiff must stipulate within 30 days of service of a copy of this order, to $25,000, and otherwise affirmed, without costs.
Wilson, Elser, Moskowitz, Edelman Dicker LLP, New York (Richard E. Lerner of counsel), for appellant-respondent.
Weiser Associates, New York (Martin J. Weiser of counsel), for respondent-appellant.
Before: Tom, J.P., Friedman, Nardelli, Buckley and Renwick, JJ.
Plaintiff was injured when, after ordering a cup of coffee, defendant's employee slid the cup across the counter toward plaintiff causing it to fall over and spill on her left foot. The coffee was between 195 and 205 degrees and caused a second-degree burn, which resulted in permanent nerve damage, leading plaintiff to sometimes experience numbness and a burning sensation in her left foot.
The trial court properly concluded that the jury's finding that plaintiff's injuries were caused by the negligence of defendant's employee was based upon a fair interpretation of the evidence ( see McDermott v Coffee Beanery, Ltd., 9 AD3d 195, 206). The court properly recognized that there was no basis upon which to disturb the jury's credibility determinations ( id.), and we reject defendant's argument that plaintiff's actions following the accident were not consistent with that of someone who had hot coffee spilled on her.
Although the award of $50,000 for past pain and suffering was appropriate, the future pain and suffering award deviates materially from what would be reasonable compensation to the extent indicated ( see Beck v Woodward Affiliates, 226 AD2d 328, 331).