Miller v. Long Island R.R.

Decision Date17 September 2001
Docket Number99-11781,2
PartiesDerek Marc Miller, respondent, v. Long Island Rail Road, defendant third-party plaintiff-appellant; Gary Nobile, et al., third-party defendants-appellants (and another title). 1999-11781 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT Argued -
CourtNew York Supreme Court — Appellate Division

Ahmuty, Demers & McManus, Albertson, N.Y. (Frederick B. Simpson and Brendan T. Fitzpatrick of counsel), for defendant third-party plaintiff-appellant.

Mulholland, Minion & Roe, Williston Park, N.Y. (John A. Beyrer of counsel), for third-party defendant-appellant Gary Nobile.

Kelly, Rode & Kelly, LLP, Mineola, N.Y. (Loris Zeppieri of counsel), for third-party defendant-appellant Joseph Miller.

Connelly & Connelly, P.C. (Paul F. McAloon, P.C., New York, N.Y., of counsel), for respondent.

DECISION & ORDER

LAWRENCE J. BRACKEN, P.J.

ANITA R. FLORIO

ROBERT W. SCHMIDT

THOMAS A. ADAMS, JJ.

In an action to recover damages for personal injuries, the defendant third- party plaintiff, the Long Island Rail Road, appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Suffolk County (Cohalan, J.), entered December 1, 1999, as, upon a jury verdict, and the denial of its motion pursuant to CPLR 4404 to set aside the verdict as excessive, is in favor of the plaintiff and against it in the principal sum of $10,736,800 ($1,800 for past medical expenses, $4,000,000 for past pain and suffering, $6,000,000 for future pain and suffering, $185,000 for future medical expenses, and $550,000 for future lost earnings), the third-party defendant Gary Nobile separately appeals, as limited by his brief, from so much of the same judgment as, upon the jury verdict, and upon the denial of his motion pursuant to CPLR 4404 to set aside the verdict as excessive, is in favor of the defendant third-party plaintiff Long Island Rail Road and against him for contribution, and the third-party defendant Joseph Miller separately appeals, as limited by his brief, from so much of the same judgment as awarded the plaintiff damages of $4,000,000 for past pain and suffering and $6,000,000 for future pain and suffering.

ORDERED that the judgment is modified, on the facts and as a matter of discretion, by deleting the provisions thereof awarding damages on the plaintiff's causes of action to recover damages for past and future pain and suffering, and substituting therefor a provision severing those causes of action and granting a new trial with respect thereto; as so modified, the judgment is affirmed, with one bill of costs to the appellants Long Island Rail Road and Joseph Miller, unless within 30 days after the service upon him of a copy of this decision and order, with notice of entry, the plaintiff shall file in the office of the Clerk of the Supreme Court, Suffolk County, a written stipulation consenting to reduce the verdict as to damages for past pain and suffering from $4,000,000 to $1,300,000, and for future pain and suffering from $6,000,000 to $1,950,000; in the event that the plaintiff so stipulates, then the...

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