Shurgan by Shurgan v. Tedesco
| Decision Date | 27 January 1992 |
| Citation | 578 N.Y.S.2d 658,179 A.D.2d 805 |
| Parties | Noah SHURGAN, an Infant, by His Parent and Natural Guardian, Kenneth SHURGAN, et al., Respondents, v. Joseph TEDESCO, et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Irving Mandel, White Plains (Pagnani, Ruderman & Semel [Martin J. Semel and Fredric Paul Gallin], of counsel), for appellants.
Edelman & Edelman, P.C., Brooklyn (Paul H. Maloney, of counsel), for respondents.
Before THOMPSON, J.P., and SULLIVAN, HARWOOD and O'BRIEN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, etc., the defendants appeal from an interlocutory judgment of the Supreme Court, Nassau County (Winick, J.), dated May 15, 1990, which, upon a jury verdict in favor of the plaintiffs and against the defendants in the principal sum of $65,000, and upon an order granting the plaintiffs' motion pursuant to CPLR 4404(a), inter alia, for a new trial on the issue of damages to the extent of directing a new trial on the issue of damages unless the defendants served and filed a written stipulation consenting to increase the verdict as to damages to the principal sum of $150,000, and upon the failure of the defendants to so stipulate, directed a new trial on the issue of damages only.
ORDERED that the interlocutory judgment is affirmed, with costs.
The infant plaintiff sustained permanent facial scarring following an attack by the defendants' dog, which was known to have vicious propensities. The uncontroverted evidence revealed that the plaintiff underwent two surgeries and would require two additional surgeries to attempt to repair his disfiguring facial scar.
The exercise of the discretion of a trial court over damage awards should be exercised sparingly (James v. Shanley, 73 A.D.2d 752, 423 N.Y.S.2d 312). However, under the circumstances of this case, we find that the trial court properly set aside the jury's award of damages as inadequate since the award materially deviated from what would be reasonable compensation (see, CPLR 5501[c]; Christopher v. Great Atl. and Pacific Tea Co., 76 N.Y.2d 1003, 564 N.Y.S.2d 715, 565 N.E.2d 1266; Byrd v. New York City Tr. Auth., 172 A.D.2d 579, 568 N.Y.S.2d 628; Giglio v. Pignataro, 54 A.D.2d 556, 387 N.Y.S.2d 9).
To continue reading
Request your trial
-
Gasperini v. Center for Humanities, Inc.
...2d 234, 235 (3d Dept. 1993) ("settled law" that trial courts conduct "materially deviates" inquiry); Shurgan v. Tedesco, 179 App. Div. 2d 805, 806, 578 N. Y. S. 2d 658, 659 (2d Dept. 1992) (approving trial court's application of "materially deviates" standard); see also Lightfoot v. Union C......
-
Dummitt v. Chesterton (In re N.Y.C. Asbestos Litig.)
...from what is considered reasonable compensation, this standard has been held to apply to a trial court. See Shurgan v. Tedesco, 179 A.D.2d 805, 806, 578 N.Y.S.2d 658 (2nd Dept 1992). In determining whether an award deviates from what is reasonable compensation, courts look to comparable cas......
-
Shea v. Icelandair
...118 (4th Dep't 1994); Cochetti v. Gralow, 192 A.D.2d 974, 975, 597 N.Y.S.2d 234, 235 (3d Dep't 1993); Shurgan v. Tedesco, 179 A.D.2d 805, 806, 578 N.Y.S.2d 658, 659 (2d Dep't 1992). Furthermore, at least one federal district court has applied this test to a jury verdict under the Human Righ......
-
Consorti v. Armstrong World Industries, Inc.
...using proper "deviates materially" standard, where Appellate Division had referred to both standards); Shurgan v. Tedesco, 179 A.D.2d 805, 578 N.Y.S.2d 658, 659 (1992) (affirming trial court's additur where court set aside jury award as materially deviating from what would be reasonable com......