Opinion
November 15, 1995
Appeal from the Supreme Court, Erie County, Sprague, J.
Present — Denman, P.J., Fallon, Wesley, Doerr and Boehm, JJ.
Amended judgment unanimously affirmed without costs. Memorandum: By failing to object to the verdict before the jury's discharge in the derivative action of plaintiff Sherrill Stangl as inconsistent with the verdict in the action of her husband, Samuel T. Stangl (plaintiff), plaintiffs failed to preserve the issue for our review (see, Barry v Manglass, 55 N.Y.2d 803, 806, rearg denied 55 N.Y.2d 1039; Gray v Brooklyn Hgts. R.R. Co., 175 N.Y. 448, 450-451). We reject the further contention of plaintiffs that the failure to award any damages to Sherrill Stangl in her derivative action is against the weight of the evidence. "[A] jury's verdict should not be set aside as against the weight of the evidence unless it is palpably wrong and there is no fair interpretation of the evidence to support the jury's conclusion [citation omitted] or if the verdict is one reasonable persons could have rendered after receiving conflicting evidence [citation omitted]" (Petrovsky v Fornes, 125 A.D.2d 972, 973, lv denied 69 N.Y.2d 608; see, Greene v Frontier Cent. School Dist., 214 A.D.2d 947; Raucci v City School Dist., 203 A.D.2d 714, 715; Barnes v County of Onondaga, 195 A.D.2d 1042; Nicastro v Park, 113 A.D.2d 129, 134). A fair interpretation of the evidence supports the jury's verdict.
In light of the issue regarding the extent to which the injuries of plaintiff were caused by the 1989 accident, Supreme Court properly denied his motion to set aside the verdict as inadequate (see, CPLR 5501 [c]) or as against the weight of the evidence (see, Petrovsky v Fornes, supra; Greene v Frontier Cent. School Dist., supra; Raucci v City School Dist., supra; Barnes v County of Onondaga, supra).
The comment of defense counsel during summation that plaintiff had failed to advise defendants' examining physician of plaintiff's fall down a flight of stairs while aboard a ship three years after the accident was clearly improper. The physician did not testify and counsel acted as an unsworn witness concerning facts not in evidence (see, Clarke v New York City Tr. Auth., 174 A.D.2d 268, 276; Senn v Scudieri, 165 A.D.2d 346, 355). Although that comment was prejudicial, it does not require a new trial (see, Wallace v Booth Mem. Hosp., 163 A.D.2d 917; Vassura v Taylor, 117 A.D.2d 798, 800, appeal dismissed 68 N.Y.2d 643). More egregious were the comments of defense counsel on summation suggesting that the measure of damages should be based upon the jurors' work experience and financial status and that the jurors should discount any future damages award to present value. Although it is not improper for defense counsel to suggest an appropriate award (see, Tate v Colabello, 58 N.Y.2d 84, 87), it is "extremely prejudicial" to misrepresent the method by which the jury is to assess damages (Vassura v Taylor, supra, at 799; see, Nicholas v Island Indus. Park, 46 A.D.2d 804). That improper conduct was compounded by the court's failure to instruct the jury "to award the full amount of future damages * * * without reduction to present value" (CPLR 4111 [f]). Plaintiffs failed, however, to object to counsel's comments or to request a curative jury instruction and the issue, therefore, is not preserved. Further, in light of the two-year period for which future damages were awarded and the consistency of the past and future damages awards, we conclude that counsel's suggestion to the jury that it discount any future damages award to present value did not so prejudice plaintiffs as to deprive them of a fair trial (see, Wallace v Booth Mem. Hosp., supra; Moore v Town of Huntington, 39 A.D.2d 764).
We have reviewed plaintiffs' other contentions and conclude that they are without merit.