Fishbane v. Chelsea Hall, LLC

• Decision Date: 15 September 2009
• Docket Number: 2008-02910.
• Citation: Fishbane v. Chelsea Hall, LLC, 65 A.D.3d 1079, 885 N.Y.S.2d 718, 2009 NY Slip Op 6504 (N.Y. App. Div. 2009)
• Parties: MYRON FISHBANE, Respondent, et al., Plaintiff, v. CHELSEA HALL, LLC, Defendant, and CHELSEA APARTMENTS, LLC, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

65 A.D.3d 1079

885 N.Y.S.2d 718

2009 NY Slip Op 06504

MYRON FISHBANE, Respondent, et al., Plaintiff, v. CHELSEA HALL, LLC, Defendant, and CHELSEA APARTMENTS, LLC, et al., Appellants.

2008-02910.

Appellate Division of the Supreme Court of New York, Second Department.

Decided September 15, 2009.

In an action to recover damages for personal injuries, etc., the defendants Chelsea Apartments, LLC, and Apartment Management Associates, LLC, appeal from a judgment of the Supreme Court, Kings County (Levine, J.), dated March 13, 2008, which, upon an order of the same court (Solomon, J.), dated February 7, 2007, granting the plaintiffs' motion to strike their answer for failure to comply with discovery, and an order of the same court (Solomon, J.), dated May 2, 2007, denying their motion for leave to renew and reargue their opposition to the plaintiffs' motion to strike, and upon a jury verdict in favor of the plaintiff Myron Fishbane and against them, finding that he sustained damages in the principal sums of $500,000 for past pain and suffering and $300,000 for future pain and suffering, is in favor of that plaintiff and against them.

Ordered that the judgment is reversed, on the facts and as an exercise of discretion, with costs, and the defendants Chelsea Apartments, LLC, and Apartment Management Associates, LLC, are granted a new trial with respect to damages for past and future pain and suffering unless within 30 days after service upon the plaintiff Myron Fishbane of a copy of this decision and order, that plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting (1) to reduce the verdict as to damages for past pain and suffering from the sum of $500,000 to the sum of $350,000, and (2) to reduce the verdict as to damages for future pain and suffering from the sum of $300,000 to the sum of $200,000, and to the entry of an appropriate amended judgment accordingly; in the event that the plaintiff Myron Fishbane so stipulates, then the judgment, as so reduced and amended, is affirmed, without costs or disbursements.

The plaintiffs commenced this action to recover damages for a trimalleolar ankle fracture sustained by the plaintiff Myron Fishbane on December 10, 2004 when he allegedly slipped and fell on the steps of a building owned and managed by the defendants Chelsea Apartments, LLC, and Apartment Management Associates, LLC (hereinafter the defendants). In December 2006 the plaintiffs moved to strike the defendants' answer pursuant to CPLR 3126 for failure to comply with court-ordered disclosure, and, after oral argument, the Supreme Court granted the motion....