Goldberg v. Rivers , 21 A.D.2d 890 ( 1964 )

In an action to recover damages for injury to person and property, defendant appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Nassau County, entered November 26, 1963 after trial upon a jury’s verdict, as awarded $12,500 to plaintiff for the personal injury. Defendant’s only contention is that such award is excessive. Judgment, insofar as appealed from, reversed on the facts; cause of action for personal injury severed; and a new trial granted as to such cause of action, with costs to abide the event, unless, within 30 days after entry of the order hereon, plaintiff shall serve and file a written stipulation consenting to reduce to $8,500 the amount of the verdict in his favor upon said cause of action for personal injury, and to modify the judgment accordingly. If such stipulation be served and filed, the judgment, as thus reduced and modified, and insofar as appealed from, is affirmed, without costs. In our opinion, the evidence shows that, as a result of this accident, plaintiff suffered an aggravation of a long pre-existing back condition and that this condition was not a new injury. In view of this fact and in view of the paucity of special damages and the absence of any medical treatments since plaintiff’s discharge by his doctor eight months after the accident, the jury’s assessment of the damages was excessive at least to the extent indicated. Beldock, P. J., Ughetta, Christ, Rabin and Hopkins, JJ., concur.