Opinion
September 24, 1990
Appeal from the Supreme Court, Kings County (I. Aronin, J.).
Ordered that the judgment is modified, on the law and the facts and as a matter of discretion, by reducing the principal sum awarded to the plaintiff Bettie Venable to $838,500, representing damages for past and future loss of earnings and past and future medical expenses, less no-fault benefits of $50,000, and adding thereto a provision severing the plaintiff Bettie Venable's claims for damages for past and future pain and suffering and granting a new trial with respect thereto, unless the plaintiff Bettie Venable shall serve and file in the office of the clerk of the Supreme Court, Kings County, a written stipulation signed by her consenting to reduce the verdict as to her damages for past and future pain and suffering from the principal sum of $4,030,000 to the principal sum of $1,500,000, and to the entry of an amended judgment accordingly; as so modified, the judgment is affirmed, without costs or disbursements; and it is further,
Ordered that the plaintiff Bettie Venable's time to serve and file a stipulation is extended until 20 days after service upon her of a copy of this decision and order with notice of entry; and it is further,
Ordered that in the event that the plaintiff Bettie Venable so stipulates, then the judgment, as so reduced and amended, is affirmed, without costs or disbursements.
The defendant argues that the plaintiff Bettie Venable should not have received separate awards for loss of enjoyment of life in addition to awards for past and future pain and suffering. We agree. In McDougald v. Garber ( 73 N.Y.2d 246), the Court of Appeals held that it is improper to allow separate awards for pain and suffering and for loss of enjoyment of life. Accordingly, the awards for past and future loss of enjoyment of life must be vacated and loss of enjoyment of life should be considered simply as one factor in determining the awards for pain and suffering.
Considering loss of enjoyment of life as an element of pain and suffering, we find nevertheless that the awards to Venable for pain and suffering are excessive. The record indicates that Venable suffered, inter alia, a fractured tibia and degloving injury of the ankle, requiring substantial hospitalization and rehabilitation, and possibly necessitating amputation in the future. While the pain was undoubtedly severe, we find that the awards of $2,000,000 for past pain and suffering and $2,030,000 for future pain and suffering "deviate * * * materially from what would be reasonable compensation" (CPLR 5501 [c]; see, Gonzalez v. Manhattan Bronx Surface Tr. Operating Auth., 160 A.D.2d 420; Rivera v. City of New York, 160 A.D.2d 985; Jurgen v. Linesburgh, 159 A.D.2d 689; Menga v. Raquet, 150 A.D.2d 434). It is our view that the evidence warrants a finding of damages for past and future pain and suffering of $1,500,000.
The awards to Venable for loss of earnings are supported by a fair interpretation of the evidence and are not excessive (see, Nicastro v. Park, 113 A.D.2d 129; see also, Hapgood v. P C Food Mkts., 149 A.D.2d 770). Further, the awards for pain and suffering to Leshawn and Lavonne Brown are not inadequate. Brown, J.P., Kooper, Harwood and Balletta, JJ., concur.