Lyerly v Madison Sq. Garden (2004 NY Slip Op 50363(U))

Lyerly v Madison Sq. Garden

2004 NY Slip Op 50363(U)

Decided on April 28, 2004

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

ANNE LYERLY, Plaintiff-Respondent,

against

MADISON SQUARE GARDEN, Defendant-Appellant.

Defendant appeals from an order of the Civil Court, New York County, entered May 31, 2002 (Carol Edmead, J.) which, after a jury trial, granted plaintiff's motion to set aside the verdict as to damages and directed a new trial on that issue.

Order entered May 31, 2002 (Carol Edmead, J.) reversed, without costs, motion denied and verdict reinstated. The Clerk is directed to enter judgment accordingly.

The jury's verdict as to damages was supported by valid lines of reasoning and permissible inferences from the evidence at trial (see Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]), was not against the weight of the evidence (see CPLR 4404[a]), and did not deviate materially from reasonable compensation under the circumstances (see CPLR 5501[c]). In considering the conflicting testimony of the parties' respective expert witnesses, the jury was not required to accept one expert's testimony over that of the other, but was entitled to accept or reject either expert's position in whole or in part (Mejia v JMM Audubon, Inc., 1 AD3d 261, 262 [2003]). The verdict limiting plaintiff's award to $25,000 for past pain and suffering and $15,000 for future pain and suffering finds support in the undisputed evidence that plaintiff experienced knee problems unrelated to the subject slip-and-fall accident, and in the testimony of defendant's expert orthopedist to the extent he opined that, while the trauma sustained in the accident may [*2]have caused a contusion sprain and cartilage damage to her knee, plaintiff had substantially recovered from the effects of the trauma by the time of trial (see Mejia v JMM Audubon, Inc., supra; Perry v Manoco Corp., 309 AD2d 654 [2003]). We perceive no inconsistency between the foregoing and the award of damages for future medical expenses (cf. Myers v S. Schaffer Grocery Corp., 281 AD2d 156 [2001]). It was thus improvident for the trial court to overrule the jury's verdict with regard to past and future pain and suffering (see Po Yee So v Wing Tat Realty, Inc., 259 AD2d 373 [1999]), and those jury awards should be reinstated.