ERNEST LEWIS plf-res, v. NEW YORK CITY TRANSIT AUTHORITY def-ap

8622. ERNEST LEWIS plf-res, v. NEW YORK CITY TRANSIT AUTHORITY def-ap — Steve S. Efron, New York (Renee L. Cyr of counsel), for ap — Alexander J. Wulwick, New York, for res — Judgment, Supreme Court, New York County (Geoffrey D. Wright, J.), entered May 9, 2011, after a jury trial, awarding plaintiffs the principal amounts of $2,500,000 for past pain and suffering, $4,000,000 over ten years for future pain and suffering and $283,202.90 for past hospital, rehabilitation and medical expenses, unanimously affirmed, without costs.

The trial court providently exercised its discretion in charging the jury as to the common carrier’s duty when a passenger is disabled (PJI 2:162), which asked the jury to consider plaintiff’s infancy, to the extent that the driver knew or should have known of it. The charge took into account the existing circumstances and did not create a higher duty of care (see Bethel v. New York City Tr. Auth., 92 NY2d 348, 351 [1998]). Plaintiff could be considered a “passenger,” as he was trying to catch the bus at the time of the accident and testified that he had indicated his desire to board the bus by tapping on it.