Submitted March 8, 2002.
April 1, 2002.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Nassau County (Brandveen, J.), dated January 24, 2001, as, upon an order of the same court, entered October 5, 2000, which denied her motion pursuant to CPLR 4404 to set aside the jury verdict, awarded her total damages in the principal sum of only $51,247.96 (for past and future medical expenses and past loss of earnings) and failed to award her damages for past and future pain and suffering.
Katz Kreinces, LLP, Garden City, N.Y. (Lawrence K. Katz of counsel), for appellant.
White, Fleischner Fino, LLP, New York, N.Y. (Michael R. Varble of counsel), for respondents.
Before: FRED T. SANTUCCI, J.P., SONDRA MILLER, LEO F. McGINITY, ROBERT W. SCHMIDT, JJ.
ORDERED that the judgment is reversed insofar as appealed from, on the law, a new trial is granted on the issue of damages, and the matter is remitted to the Supreme Court, Nassau County, for a new trial as to all damages, with costs to abide the event.
The plaintiff commenced this action against the defendants to recover damages for personal injuries allegedly sustained in a motor vehicle accident. The jury apportioned fault 60% against the plaintiff and 40% against the defendant Gerald Rubin. The jury awarded the plaintiff (subject to the 60% reduction) $52,000 for past medical expenses, $67,200 for future medical expenses, $13,000 for past loss of earnings, and nothing for past and future pain and suffering. Following the trial, the plaintiff moved to set aside the verdict, inter alia, on the grounds that the award of damages was against the weight of the evidence, irreconcilably inconsistent, and represented a compromise verdict. The Supreme Court denied the motion and a judgment was thereafter entered upon the jury verdict. We now reverse the judgment insofar as appealed from and remit the matter for a new trial on the issue of all damages, including past and future pain and suffering.
The trial court should have set the verdict aside and granted a new trial on the issue of damages (see Myers v. Schaffer Grocery Corp., 281 A.D.2d 156, 157; Cadet v. City of New York, 238 A.D.2d 368; Cochetti v. Gralow, 192 A.D.2d 974, 975; Patrick v. New York Bus Serv., 189 A.D.2d 611, 612). Although the plaintiff failed to preserve for appellate review her claim that the verdict was inconsistent because the claim was raised after the jury had been discharged (see Barry v. Manglass, 55 N.Y.2d 803; Tesoro v. Rozza, 267 A.D.2d 227; Pelosi v. TJA Maintenance Programming, 247 A.D.2d 453, 454), where the jury necessarily concludes that the plaintiff was injured as a result of the accident, "the jury's failure to award damages for pain and suffering is contrary to a fair interpretation of the evidence and constitutes a material deviation from what would be reasonable compensation" (Ramos v. New York City Hous. Auth., 280 A.D.2d 325, 326, quoting Kennett v. Piotrowski, 234 A.D.2d 983, 984; see Pares v. LaPrade, 266 A.D.2d 852; Kriesel v. May Dept. Stores Co., 261 A.D.2d 837; Corsaro v. Mt. Calvary Cemetery, 258 A.D.2d 969; Grasso v. American Brass Co., 212 A.D.2d 994; see also Laraby v. Village of Potsdam Hous. Auth., 252 A.D.2d 603). Moreover, there is a strong likelihood that the verdict was an impermissible compromise (see Rivera v. City of New York, 253 A.D.2d 597, 600; Torres v. City of New York, 226 A.D.2d 701, 702). The jury was presented with conflicting evidence and theories as to the cause of the plaintiff's injuries, and it is possible that it was confused by the issue of what injuries were caused by the automobile accident and what injuries were pre-existing. While the award of nothing for pain and suffering could be explained by evidence of pre-existing injuries, if the jury credited the defendants' expert witnesses and concluded that the plaintiff sustained no further injury as a result of the automobile accident, then the awards of damages for past and future medical expenses and past loss of earnings would be unwarranted. If the jury concluded that the plaintiff sustained further injury as a result of the accident, then the award of nothing for past and future pain and suffering is inadequate (see Cadet v. City of New York, supra; Torres v. City of New York, supra, at 702; Cochetti v. Gralow, supra, at 975; Patrick v. New York Bus Serv., supra, at 612).
Given the need for a new trial on the issue of damages, it is unnecessary for us to reach the issue of the inadequacy of the damages awarded in this case.
SANTUCCI, J.P., S. MILLER, McGINITY and SCHMIDT, JJ., concur.