Sence v. Atoynatan

• Decision Date: 17 August 2016
• Citation: 36 N.Y.S.3d 493,142 A.D.3d 600,2016 N.Y. Slip Op. 05803
• Parties: Jaelin SENCE, etc., et al., respondents-appellants, v. Ioanis ATOYNATAN, etc., et al., defendants, New York Methodist Hospital, appellant-respondent.
• Court: New York Supreme Court — Appellate Division

142 A.D.3d 600
36 N.Y.S.3d 493
2016 N.Y. Slip Op. 05803

Jaelin SENCE, etc., et al., respondents-appellants,
v.
Ioanis ATOYNATAN, etc., et al., defendants,

New York Methodist Hospital, appellant-respondent.

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

Aug. 17, 2016.

36 N.Y.S.3d 495

Aaronson Rappaport Feinstein & Deutsch LLP (Kaufman Borgeest & Ryan, LLP, Valhalla, NY [Edward J. Guardaro, Jr. ], of counsel), for appellant-respondent.

Kramer, Dillof, Livingston & Moore, New York, NY (Thomas A. Moore, Matthew Gaier, and John Cagney of counsel), for respondents-appellants.

REINALDO E. RIVERA, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, and HECTOR D. LaSALLE, JJ.

142 A.D.3d 600

In an action to recover damages for medical malpractice, the defendant New York Methodist Hospital appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Kings County (Spodek, J.), dated February 2, 2014, as, upon a jury verdict on the issue of liability finding it 75% at fault in the causation of the infant plaintiff's injuries and the defendant Ioanis Atoynatan 25% at fault, upon a jury verdict on the issue of damages finding that the infant plaintiff sustained damages in the principal sums of $4,000,000 for past pain and suffering, $7,015,000 for 61 years for future pain and suffering, and $35,000 per year for 39 years for future lost earnings, starting in the year 2029, applying a 3.275% growth rate until 2029, and applying a 4.3% growth rate for the 39 years thereafter, and upon the denial of its motion pursuant to CPLR 4404(a) to set aside the verdict and for judgment as a matter of law, or, in the alternative, to set aside the verdict as contrary to the weight of the evidence and for a new trial, is in favor of the plaintiffs and against it, and the plaintiffs cross-appeal from the same judgment.

ORDERED that the plaintiffs' cross appeal is dismissed, as the plaintiffs are not aggrieved by the judgment (see CPLR 5511 ; Mixon v. TBV, Inc., 76 A.D.3d 144, 904 N.Y.S.2d 132 ); and it is further,

ORDERED that the judgment is modified, on the law, on the facts, and in the exercise of discretion, by deleting the provision thereof awarding damages for past pain and suffering in the principal sum of $4,000,000; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for a new trial on the issue of damages for past pain and suffering, unless within 30 days after service upon the plaintiffs of a copy of this decision and order, the plaintiffs serve and file in the office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting to reduce the amount of damages for past pain and suffering from the principal sum of $4,000,000 to

142 A.D.3d 601

the principal sum of $2,000,000, and to the entry of an amended judgment accordingly, which amended judgment shall provide that from the date on which the defendant New York Methodist Hospital deposited the sum of $7,500,000 into court pursuant to an order of the Supreme Court, Kings County, dated September 24, 2014, the accrual of interest shall be on a sum equal to the principal sum awarded less the $7,500,000 on deposit; in the event that the plaintiffs so stipulate, the judgment, as so reduced, modified, and amended, is affirmed insofar

36 N.Y.S.3d 496

as appealed from, without costs or disbursements; in the event that the plaintiffs do not so stipulate, an amended judgment shall be entered following the new trial on the issue of...