Faniel v. Marriott Corp. , 612 N.Y.S.2d 125 ( 1994 )

—Judgment, Supreme Court, New York County (Burton Sherman, J.), entered September 28, 1993, which, after a jury trial, found defendant 60% negligent and plaintiff 40% negligent, and awarded plaintiff $66,000 for past pain and suffering and $990,000 for future pain and suffering over the next 45 years, and entered judgment in accordance with CPLR article 50-B, unanimously modified on the law, the facts, and in the exercise of discretion, and a new trial ordered solely on the issue of damages, without costs, unless plaintiff shall stipulate in writing within 20 days of the entry of this order to an amended judgment reducing plaintiff’s award for future pain and suffering from $990,000 to $750,000, in which event the judgment, as amended, is affirmed, without costs.

As it was not "utterly irrational” (Cohen v Hallmark Cards, 45 NY2d 493, 499) for the jury to conclude, based on the evidence viewed in the light most favorable to plaintiff (Matter of Kornblum Metals Co. v Intsel Corp., 38 NY2d 376, 379), that defendant’s negligence was a proximate cause of the slip and fall accident, the jury’s verdict on liability should remain undisturbed. Indeed, there was evidence that the piece of fruit upon which plaintiff slipped and fell had a puncture in it as if plaintiff’s heel had landed on it when she stepped back. Moreover, there was evidence that indicated that the piece of fruit had been on the floor for at least 35 minutes prior to the accident and thus, the jury could have reasonably determined that defendant had constructive notice of the condition.

While the jury’s award was not internally inconsistent, we find that the award for future pain and suffering "deviates materially from what would be reasonable compensation” under the circumstances (CPLR 5501 [c]). Accordingly, we direct a new trial on damages unless plaintiff stipulates to a reduction of the verdict to the extent indicated. Concur— Ellerin, J. P., Asch, Rubin, Nardelli and Williams, JJ.