John v. City of New York
| Decision Date | 07 January 1997 |
| Citation | 652 N.Y.S.2d 15,235 A.D.2d 210 |
| Parties | Augustus JOHN, Plaintiff-Respondent, v. The CITY OF NEW YORK, et al., Defendants, and New York City Health and Hospitals Corp., Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Robert Conason, for plaintiff-respondent.
Ellen B. Fishman, for defendant-appellant.
Before ELLERIN, J.P., and WALLACH, WILLIAMS, TOM and ANDRIAS, JJ.
Judgment, Supreme Court, New York County (Alice Schlesinger, J., and a jury), entered November 9, 1995, in favor of plaintiff and against defendant-appellant New York City Health and Hospitals Corp. in the amount of $8,335,000, unanimously affirmed, without costs.
Appellant's challenges to the testimony of plaintiff's expert witnesses and the summation of plaintiff's attorney are unpreserved for failure to object (see, Laniado v. New York Hosp., 168 A.D.2d 341, 562 N.Y.S.2d 662, lv. denied 78 N.Y.2d 853, 573 N.Y.S.2d 466, 577 N.E.2d 1058; Smith v. City of New York, 217 A.D.2d 423, 629 N.Y.S.2d 411), and, in any event, without merit. The experts' testimony conveyed an assurance that it was not based on supposition or speculation, "though not solicited or expressed in terms of the particular combination of magical words represented by the phrase 'reasonable degree of medical certainty' " (Matott v. Ward, 48 N.Y.2d 455, 463, 423 N.Y.S.2d 645, 399 N.E.2d 532). If appellant deemed the basis for the opinions to be insufficient, it should have either elicited such on cross-examination (CPLR 4515) or presented rebuttal evidence. Counsel's summation was within the "wide latitude" permitted in closing arguments (Califano v. City of New York, 212 A.D.2d 146, 154-155, 627 N.Y.S.2d 1008).
The total award of $8,335,000 did not deviate materially from what would be reasonable compensation under the circumstances (CPLR 5501[c] ). The award of $385,000 for lost future earnings was only slightly higher than what would have been plaintiff's salary over the course of his 14-year work-life expectancy. The award of $444,000 for past medical expenses indicates that the jury took into consideration that some of the treatment plaintiff received was for a prior, unrelated injury, since the total hospital cost following his accident was $663,737. The award of $925,000 for future medical expenses was supported by the experts' testimony that plaintiff would need additional amputations higher up on his legs; replacement of his prosthetic devices about...
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