Estate of Angelica Pesante v. Mundell

• Decision Date: 02 February 2007
• Docket Number: CA 06-00190.
• Citation: 2007 NY Slip Op 00923,37 A.D.3d 1173,829 N.Y.S.2d 390
• Court: New York Supreme Court — Appellate Division
• Parties: ESTATE OF ANGELICA PESANTE, Deceased, by EVELYN PESANTE, as Administrator, Respondent, v. EMMANUEL MUNDELL, Appellant. (Appeal No. 1.)

37 A.D.3d 1173

829 N.Y.S.2d 390

2007 NY Slip Op 00923

ESTATE OF ANGELICA PESANTE, Deceased, by EVELYN PESANTE, as Administrator, Respondent, v. EMMANUEL MUNDELL, Appellant. (Appeal No. 1.)

CA 06-00190.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

Decided February 2, 2007.

Appeal from an amended judgment of the Supreme Court, Seneca County (W. Patrick Falvey, A.J.), entered September 20, 2005 in a personal injury and wrongful death action. The amended judgment, upon a jury verdict, awarded $154,025.86 in favor of plaintiff and against defendant.

It is hereby ordered that the amended judgment so appealed from be and the same hereby is unanimously modified on the law by granting the posttrial motion in part, setting aside the award of damages and dismissing the claim for future pecuniary loss against defendant and as modified the amended judgment is affirmed without costs, and a new trial is granted on damages for pain and suffering only unless plaintiff, within 20 days of service of a copy of the order of this Court with notice of entry, stipulates to reduce the award of damages for pain and suffering to $350,000, in which event the amended judgment is modified accordingly and as modified the amended judgment is affirmed without costs.

Memorandum:

Evelyn Pesante (Pesante), as administrator of the estate of her four-year-old daughter (decedent), commenced this action seeking damages for the pain and suffering and wrongful death of decedent. Decedent and her half brothers had been placed as foster children in the home of defendants Susan Mundell and Melvin Mundell. Decedent sustained severe injuries, including a lacerated and ruptured liver, on an occasion when she and her siblings were in the care of defendant Emmanuel Mundell, their 13-year-old foster brother. Decedent received no medical attention at that time, and she eventually became disoriented. She fell down the stairs the following morning, apparently having passed out from a loss of blood, and she was unconscious when she thereafter received medical attention. She died that day, and an autopsy revealed that she had sustained a closed head injury and had significant bruising. The autopsy further revealed that the liver injury had caused approximately one third of her blood to drain into her abdominal cavity. Emmanuel, who at the time of decedent's death weighed approximately 180 pounds, stated that he had accidentally fallen on decedent. According to another foster child in the home, however, Emmanuel "tackled [decedent] from behind, and she went forward onto the bed, and she folded over it and the bed broke."

The jury awarded plaintiff $500,000 for decedent's pain and suffering and it awarded Pesante $250,000 for her future pecuniary loss for the wrongful death of decedent, apportioning 90% of the fault among the Mundell defendants and the remaining 10% of the fault to defendant County of Seneca, which had settled. We agree with the Mundell defendants that the award of damages for pain and suffering deviates materially from what would be reasonable compensation and thus that Supreme Court erred in denying that part of their posttrial motion pursuant to CPLR 4404 (a) seeking to set aside that award (see CPLR 5501 [c]; Kolbert v Maplewood Healthcare Ctr., Inc., 21 AD3d 1301,...