Pallotta v. West Bend Co.

• Decision Date: 22 October 1990
• Citation: 561 N.Y.S.2d 66,166 A.D.2d 637
• Parties: Maria PALLOTTA, Respondent, v. WEST BEND CO., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 66

561 N.Y.S.2d 66

166 A.D.2d 637

Maria PALLOTTA, Respondent, v. WEST BEND CO., et al., Appellants.

Supreme Court, Appellate Division Second Department.

Oct. 22, 1990.

Lester Schwab Katz & Dwyer, New York City (Steven B. Prystowsky and Eric A. Portuguese, of counsel), for appellants.

Benjamin J. Sergi, P.C., Brooklyn (Irving N. Selkin, of counsel), for respondent.

Before SULLIVAN, J.P., and MILLER, O'BRIEN and RITTER, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the defendants appeal from (1) so much of an order of the Supreme Court, Kings County (Krausman, J.), dated November 10, 1988, as denied their application for a further physical examination of the plaintiff, and (2) a judgment of the same court (Held, J.), entered February 3, 1989, which, upon a jury verdict, is in favor of the plaintiff and against them in the principal sum of $306,520, representing awards of $225,000 for past, present and future pain and suffering, $25,000 for past, present and future loss of enjoyment of life, $50,000 for mental anguish, and $6,520 for medical expenses.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is modified, on the law, by reducing the principal sum awarded to the plaintiff to $6,520, representing damages for medical expenses and adding thereto a provision severing the plaintiff's claims for damages for conscious pain and suffering and granting a new trial with respect thereto, unless within 20 days after service upon the plaintiff of a copy of this decision and order, with notice of entry, the plaintiff shall serve and file in the office of the clerk of the Supreme Court, Kings County, a written stipulation consenting to reduce the verdict as to damages for conscious pain and suffering to the principal sum of $225,000, said reduction representing the vacatur of the awards for past, present and future loss of enjoyment of life and for mental anguish, and to the entry of an amended judgment accordingly; as so modified, the judgment is affirmed; and it is further,

ORDERED that in the event the plaintiff so stipulates, then the judgment, as so reduced and amended, is affirmed; and it is further,

ORDERED that the plaintiff is awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501[a][1].

The instant personal injury action arose after the plaintiff was scalded by hot oil when the handle-leg assembly of a skillet manufactured by the defendant West Bend Co. allegedly broke while she was lifting the appliance. Contrary to the defendants' contention, we find that the plaintiff adduced sufficient evidence, in the form of eyewitness and expert testimony, to establish a prima facie case on the issue of liability. Moreover, the trial court did not improvidently exercise its broad discretion in permitting the plaintiff's witness on the topic of phenolic plastics to testify as an expert in that area, inasmuch as the witness had engaged in extensive testing of phenolic plastic products in the past (see, Meiselman v. Crown Hgts. Hosp., 285 N.Y. 389, 34 N.E.2d 367; Karasik v. Bird, 98 A.D.2d 359, 470 N.Y.S.2d 605). Furthermore, viewing the evidence in the light most favorable to the plaintiff (see, Ferrer v. Harris, 55 N.Y.2d 285, 449 N.Y.S.2d 162, 434 N.E.2d 231), we conclude that the jury's verdict as to liability was not against the weight of the evidence (see, Cohen v. Hallmark Cards, 45 N.Y.2d 493, 410 N.Y.S.2d 282, 382 N.E.2d 1145).

Similarly unavailing is the defendants' contention that the trial court interfered with the defense case. While the court did question some defense witnesses at length, it is clear from the record that these questions were intended both to clarify the testimony...