(c) Appellate division.
The appellate division shall review questions of law and questions of
fact on an appeal from a judgment or order of a court of original
instance and on an appeal from an order of the supreme court, a county
court or an appellate term determining an appeal. The notice of appeal
from an order directing summary judgment, or directing judgment on a
motion addressed to the pleadings, shall be deemed to specify a
judgment upon said order entered after service of the notice of appeal
and before entry of the order of the appellate court upon such appeal,
without however affecting the taxation of costs upon the appeal. In
reviewing a money judgment in an action in which an itemized verdict is
required by rule forty-one hundred eleven
of this chapter in which it is contended that the award is excessive or
inadequate and that a new trial should have been granted unless a
stipulation is entered to a different award, the appellate division
shall determine that an award is excessive or inadequate if it deviates
materially from what would be reasonable compensation.
Delacruz v Port Auth. of N.Y. & N.J., 2009 NY Slip Op 04124 (App. Div., 1st, 2009)
The stipulated increase in damages for past pain and suffering, undertaken at the court's urging and as an alternative
to a new trial, was warranted (see Newman v Aiken, 278 AD2d
115 [2000]). In reviewing plaintiff's motion to set aside the award of
past pain and suffering, Supreme Court employed the "deviates
materially from reasonable compensation" test specified by CPLR
5501(c). That statute provides the Appellate Division with the power to
review a damages verdict under that standard; it does not expressly
provide Supreme Court with similar review power. Whether Supreme Court
was authorized to review the award for past pain and suffering under
the standard provided by CPLR 5501(c) or was required to review the
award under a more restricted standard, e.g. "shocks the conscience" (compare Ashton v Bobruitsky, 214 AD2d 630 [1994]; Prunty v YMCA of Lockport, Inc., 206 AD2d 911 [1994] and Cochetti v Gralow, 192 AD2d 974 [1993], with Lauria v New York City Dept. of Environmental Protection, 152 Misc 2d 543 [1991]; see Siegel, NY Practice §
407 [4th ed]), is an issue we need not decide. Under our own review
pursuant to CPLR 5501(c), we conclude that the jury's award for past
pain and suffering of $25,000 deviates materially from reasonable
compensation, and that, as Supreme Court found, $75,000 is reasonable
compensation (see generally Donatiello v City of New York, 301 AD2d 436 [2003]).
This case is interesting for what the Court declined to decide.
The bold is mine.
bruteforcelawyer.com 