Grandinetti v. Rose , 155 A.D.2d 378 ( 1989 )

— Judgment, Supreme Court, New York County (C. Beauchamp Ciparick, J.), entered November 9, 1988 upon a jury verdict in favor of plaintiff Dominick Grandinetti in the sum of $1,225,000 and in favor of plaintiff Eleanora Grandinetti in the sum of $250,000, which apportioned liability 50% against defendants Rose Associates and Dwelling Managers, Inc., 10% against third-party defendant 333 West 57 Rest. Corp., 10% against fourth-party defendant W 57 Restaurant, Inc., 5% against fourth-party defendant Angelos Floris, and 25% against plaintiff Dominick Grandinetti, unanimously modified, on the law, to vacate the award of damages to plaintiff Dominick Grandinetti and to remand the matter for a new trial on the issue of such damages, unless plaintiff stipulates to accept a reduced award of $500,000 in damages for his conscious pain and suffering, including his loss of enjoyment of life, subject to the same apportionment, and as so modified, otherwise affirmed, without costs.

In its special verdict, the jury awarded plaintiff $500,000 for his pain and suffering and $500,000 for his loss of enjoyment of life, pursuant to the trial court’s charge that it could award damages for loss of enjoyment of life separately from any award of damages for pain and suffering.

The Court of Appeals has since held that such an instruction should not be given since loss of enjoyment of life is not a separate element of damages deserving a distinct award but is, instead, only a factor to be considered by the jury in assessing damages for conscious pain and suffering. (McDougald v Garber, 73 NY2d 246; Nussbaum v Gibstein, 73 NY2d 912; see also, Kaufman v Hodinka, 151 AD2d 398.) Concur— Murphy, P. J., Kupferman, Ross and Carro, JJ.