Aguilar v. N.Y. City Transit Auth.
| Decision Date | 17 February 2011 |
| Citation | 81 A.D.3d 509,916 N.Y.S.2d 589 |
| Parties | Gloria AGUILAR, et al., Plaintiffs-Respondents, v. NEW YORK CITY TRANSIT AUTHORITY, et al., Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
Wallace D. Gossett, Brooklyn (Lawrence Heisler of counsel), for appellants.
Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz, New York (Ben B. Rubinowitz of counsel), for respondents.
TOM, J.P., DeGRASSE, FREEDMAN, ROMÁN, JJ.
Judgment, Supreme Court, New York County (Paul G. Feinman, J.), entered August 6, 2009, upon a jury verdict awarding plaintiff Gloria Aguilar an aggregate amount of $8 million for past physical and mental pain and suffering over 3.7 years, an aggregate amount of $8 million for future physical and mental pain and suffering over 32.6 years, $9.5 million for future medical expenses, and awarding plaintiff Aristedes Aguilar $1 million for past loss of services and $1 million for future loss of services over 27.4 years, unanimously modified, on the law, to reduce the award for future medical expenses to $6,969,793.19, and, on the facts, to vacate the awards for past and future physical and mental pain and suffering and past loss of services and order a new trial solely as to such damages, unless plaintiffs, within 30 days of service of a copy of this order with notice of entry, stipulate to reduce the awards for past physical and mental pain and suffering to $5 million, for future physical and mental pain and suffering to $5 million, and for past loss of services to $500,000 and to entry of an amended judgment in accordance therewith, and otherwise affirmed, without costs.
Plaintiff, a 45-year-old married mother of three, was hit by a bus, dragged along the street and remained under the bus for some time while rescuers attempted to free her. As a result ofthe accident, her left leg was amputated above the knee and her right leg was rendered, essentially, useless. Plaintiff underwent 10 surgeries, had numerous setbacks and suffers from post-traumatic stress disorder and severe depression. She depends on others for the most basic of care, and because of complications from her prosthesis and residual pain from the accident, she has been unable to engage in relations with her husband. Given the extensive proof of plaintiff's psychological trauma, the trial court proposed a jury verdict sheet which included itemized damages for, inter alia, past and future mental and past and future physical, pain and suffering.
Because defendants failed to object to the errors in the verdict sheet, the charge became the law applicable to the determination of the case ( see Peguero v. 601 Realty Corp., 58 A.D.3d 556, 559, 873 N.Y.S.2d 17 [2009] ), and this Court will only review if the error was "fundamental" ( Clark v. Interlaken Owners, 2 A.D.3d 338, 340, 770 N.Y.S.2d 58 [2003] ). The error here was not fundamental because it...
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