The Appellate Division of the Supreme Court of New York has extremely broad power to review money judgments in personal injury and wrongful death actions and, where a new trial is sought on the ground that an award is excessive or inadequate, the court is directed by statute to determine whether the award “deviates materially from what would be reasonable compensation” (CPLR §5001(c)), in which case it will order a remittitur or additur.

In re 91st Street Crane Collapse Litigation, __ A.D.3d __, 2017 NY Slip Op 06419, page 13/18 (1st Dept. Sept. 12, 2017) (91st Street Crane Collapse), is such a case in which Justice Troy Webber wrote a comprehensive opinion for a unanimous panel with respect to awards for pre-impact terror, a sub-category of conscious pain and suffering for which a separate award is made. Vol. 1B NY PJI 2:320 at p. 1007 ((3d ed. 2017). Such damages are designed “to compensate the decedent's estate for the fear the decedent experienced during the interval between the moment the decedent appreciated the danger resulting in the decedent's death and the moment the decedent sustained a physical injury as a result of the danger.” Id., at 12/18, quoting NY PJI 2:320, Comment, Caveat 3.

Thirty-four years ago, I wrote an article noting the difficulty that confronts most judges and lawyers when trying to objectively evaluate cases for settlement since judicial opinions often reduce or increase awards with no more explanation than that the award “shocks the conscience of the court,” or “is so disproportionate to the injury as not to be within reasonable bounds,” or the present test in New York, it “deviates materially from what would be reasonable compensation.” See Newman,” “Damages: A Call for Meaningful Precedents,” 3 Pace L. Rev. 605 (1983). Whichever formulation is used, unless the injuries are described in detail, the opinion will not give any practical guidance to attorneys who must advise their clients whether an offer or demand is fair and reasonable, or to insurance company claims personnel who must set adequate reserves necessary to maintain the solvency of their company, or to judges tasked with making or reviewing such awards.