Opinion
October 23, 1995
Appeal from the Supreme Court, Queens County (Kitzes, J., Berkowitz, J.).
Ordered that the judgment is modified, on the facts and as a matter of discretion, by deleting the provision thereof which awarded the plaintiff Ken Mitchel the sum of $300,000 for past pain and suffering and substituting therefor a provision severing the plaintiff Ken Mitchel's cause of action to recover damages for past pain and suffering, and granting a new trial with respect thereto; as so modified the judgment is affirmed, with one bill of costs to the appellants appearing separately and filing separate briefs, unless within 30 days after service upon him of a copy of this decision and order, with notice of entry, the plaintiff Ken Mitchel shall serve and file in the office of the Clerk of the Supreme Court, Queens County, a written stipulation consenting to reduce the verdict as to damages for past pain and suffering from the sum of $300,000 to the sum of $100,000, and to the entry of an appropriate amended judgment in his favor; in the event that the plaintiff Ken Mitchel so stipulates, then the judgment, as so reduced and amended, is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for entry of an appropriate amended judgment accordingly.
There is no merit to the contention that a question of fact was raised as to whether the plaintiff could be considered a special employee of the defendant, so as to be precluded from recovery under the Labor Law (see generally, Lazo v. Mak's Trading Co., 84 N.Y.2d 896; Matter of Mid-Hudson Publ. [Roberts]., 119 A.D.2d 959; cf., Heritage v. Van Patten, 59 N.Y.2d 1017; Olsen v. We'll Manage, 214 A.D.2d 715).
The damages awarded for past pain and suffering were excessive to the extent indicated (see, Louis v. St. Victor, 202 A.D.2d 479; McLaurin v. Ryder Truck Rental, 123 A.D.2d 671). However, the awards for future pain and suffering and past loss of services do not deviate from what would be reasonable compensation (see, McLaurin v. Ryder Truck Rental, supra; Rodriguez v. City of New York, 191 A.D.2d 420; Lengares v. B A Warehousing, 216 A.D.2d 273; Marr v. Forrest, 208 A.D.2d 908).
The parties' remaining preserved contentions are either without merit or do not warrant reversal. Bracken, J.P., Rosenblatt, Santucci and Joy, JJ., concur.