Vahabe v. Barkus , 150 A.D.2d 676 ( 1989 )

In a negligence action to recover damages for personal injuries, etc., the defendant appeals from a judgment of the Supreme Court, Kings County (Vinik, J.), entered February 26, 1988, which, upon a jury verdict, is in favor of the plaintiff Sigalit Vahabe and against her in the principal sum of $75,000.

Ordered that the judgment is reversed, on the facts and as a matter of discretion, without costs or disbursements, and a new trial is granted on the issue of damages only, unless within 20 days after the service upon the plaintiff Sigalit Vahabe’s parents and natural guardians Zipora and Asher Vahabe of a copy of this decision and order, with notice of entry, they 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 to the principal sum of $25,000, and to the entry of an amended judgment accordingly. In the event they so stipulate, then the judgment, as so reduced and amended, is affirmed, without costs or disbursements. The findings of fact as to liability are affirmed.

The record reveals that the plaintiff Sigalit Vahabe sustained a concussion and other injuries when a portion of a bathroom ceiling caved in. Her medical expert witness offered uncontroverted evidence that her neck had also been injured and that the combination of the concussion and the neck injury were responsible for her recurring headaches. In light of the fact her headaches have become much less frequent to the point of only afflicting her "[o]nce in a while”, and she has not been significantly affected by her injuries in other ways (see, Penny v Shubinsky, 131 AD2d 556), the verdict was excessive to the extent indicated.

We have examined the defendant’s remaining contentions and find them to be unpreserved for review (see, Baumann v Long Is. R. R., 110 AD2d 739) or without merit (see, People v Sugden, 35 NY2d 453; Holshek v Stokes, 122 AD2d 777; Locker v Ford Motor Co., 91 AD2d 510; Rosario v Koss, 26 AD2d 561). Lawrence, J. P., Kunzeman, Rubin and Kooper, JJ., concur.