ARNULFO AHUMADA, plf-ap, v. ARTHUR DROGAN, AS TEMPORARY ADMINISTRATOR OF THE ESTATE OF ELAINE DROGAN, ETC., def-res

4454. ARNULFO AHUMADA, plf-ap, v. ARTHUR DROGAN, AS TEMPORARY ADMINISTRATOR OF THE ESTATE OF ELAINE DROGAN, ETC., def-res — The Law Office of Eric H. Green, New York (Mark Gertler of counsel), for ap — Picciano & Scahill, P.C., Bethpage (Andrea E. Ferucci of counsel), for res — Judgment, Supreme Court, Bronx County (Fernando Tapia, J.), entered November 16, 2015, granting defendant's motion pursuant to CPLR 4404(a) to set aside the jury verdict awarding plaintiff $500,000 for past pain and suffering and $250,000 for future pain and suffering over 10 years as against the weight of the evidence and excessive and remanding for a new trial on damages, unanimously modified, on the facts and in the exercise of discretion, to so remand unless plaintiff stipulates, within 20 days of service of a copy of this order with notice of entry, to reduce the jury award for past pain and suffering to $300,000, and future pain and suffering to $150,000, and otherwise affirmed, without costs.

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4454. ARNULFO AHUMADA, plf-ap, v. ARTHUR DROGAN, AS TEMPORARY ADMINISTRATOR OF THE ESTATE OF ELAINE DROGAN, ETC., def-res — The Law Office of Eric H. Green, New York (Mark Gertler of counsel), for ap — Picciano & Scahill, P.C., Bethpage (Andrea E. Ferucci of counsel), for res — Judgment, Supreme Court, Bronx County (Fernando Tapia, J.), entered November 16, 2015, granting defendant’s motion pursuant to CPLR 4404(a) to set aside the jury verdict awarding plaintiff $500,000 for past pain and suffering and $250,000 for future pain and suffering over 10 years as against the weight of the evidence and excessive and remanding for a new trial on damages, unanimously modified, on the facts and in the exercise of discretion, to so remand unless plaintiff stipulates, within 20 days of service of a copy of this order with notice of entry, to reduce the jury award for past pain and suffering to $300,000, and future pain and suffering to $150,000, and otherwise affirmed, without costs.

Supreme Court properly directed a verdict in plaintiff’s favor that he had suffered a fractured fibula, constituting a serious injury (see Insurance Law §5102[d]). Defendant offered no evidence to dispute plaintiff’s medical expert that plaintiff sustained such an injury, as shown on imaging tests, which defendant’s expert testified he could not dispute. Also, Supreme Court did not err in allowing plaintiff’s radiologist to testify regarding the MRI films he had interpreted that were not entered into evidence (Schozer v. William Penn Life Ins. Co. of N.Y., 84 NY2d 639, 643-644 [1994]), especially where they had been subpoenaed and where defendant’s expert had reviewed them but defendant chose not to call him to testify.

ARNULFO AHUMADA, plf-ap, v. ARTHUR DROGAN, AS TEMPORARY ADMINISTRATOR OF THE ESTATE OF ELAINE DROGAN, ETC., def-res

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