Opinion
June 10, 1991
Appeal from the Supreme Court, Kings County (Held, J.).
Ordered that the judgment is modified, on the law and the facts and as a matter of discretion, by (1) reducing the amount awarded to the plaintiff Albert DeMeo to the principal sum of $1,175,000, representing damages for past medical expenses, past loss of income, future medical and home health aide expenses, and future lost of income, and adding thereto a provision severing the plaintiff Albert DeMeo's claims for damages for past and future conscious pain and suffering, and granting a new trial with respect thereto unless the plaintiff Albert DeMeo serves and files in the Office of the Clerk of the Supreme Court, Kings County, a written stipulation signed by him consenting to decrease the award of damages for past conscious pain and suffering to the principal sum of $500,000, and the award for future conscious pain and suffering to the principal sum of $175,000, (2) deleting from the second decretal paragraph thereof the provision computing the interest to be awarded the plaintiff Elizabeth DeMeo and awarding her a total of $201,000, purportedly representing the principal sum of her award plus interest, and (3) deleting the fourth and fifth decretal paragraphs thereof; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for entry of an appropriate amended judgment in favor of the plaintiff Elizabeth DeMeo; and it is further,
Ordered that the plaintiff Albert DeMeo's time to serve and file the stipulation is extended until 20 days after service upon him of a copy of this decision and order, with notice of entry; in the event the plaintiff Albert DeMeo so stipulates, then the judgment in his favor, as so reduced and amended, is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for entry of an appropriate amended judgment in favor of both of the plaintiffs.
We conclude, based upon our review of the record, that any award in excess of $500,000 for the plaintiff Albert DeMeo's past pain and suffering, and any award in excess of $175,000 for the plaintiff Albert DeMeo's future pain and suffering, would deviate materially from what would constitute reasonable compensation (see, CPLR 5501 [c]). The defendant is, therefore, entitled to a new trial as to damages for past and future conscious pain and suffering, unless the plaintiff Albert DeMeo stipulates to reduce the amount of the verdict accordingly.
We further note that the total amount awarded to Elizabeth DeMeo ($201,000, purportedly representing the sum of $150,000 plus $5,100 in interest), was improperly calculated. Therefore, an appropriate amended judgment must be entered with respect to her.
Further, in the event the plaintiff Albert DeMeo stipulates to the reduction in damages, an amended judgment must also be entered with respect to him. Therefore, we need not address the defendant's contention with respect to the proper calculation of interest. This contention is also not properly before us, because it was raised for the first time in the defendant's reply brief (see, People v Ford, 69 N.Y.2d 775, 777; State Farm Fire Cas. Co. v LiMauro, 103 A.D.2d 514, 521, affd 65 N.Y.2d 369).
We have considered the defendant's remaining contentions, and find them to be without merit. Bracken, J.P., Eiber, Balletta and Rosenblatt, JJ., concur.