Appellate Division of the Supreme Court of New York, 1996

Mogil v. Gorgone

Appellate Division of the Supreme Court of New York · Decided March 18, 1996

225 A.D.2d 674; 639 N.Y.2d 484; 639 N.Y.S.2d 484; 1996 N.Y. App. Div. LEXIS 2662

Cases that cite this one

8 later published cases cite this decision.

In re Parmalat Securitìes Litigation (District Court, S.D. New York 2007)
Vaval v. NYRAC, Inc. (Appellate Division of the Supreme Court of New York 2006)
Taylor v. Martorella (Appellate Division of the Supreme Court of New York 2006)
Kravitz v. City of New York (Appellate Division of the Supreme Court of New York 2002)
Paruolo v. Yormak (Appellate Division of the Supreme Court of New York 2007)
Kihl v. Pfeffer (Appellate Division of the Supreme Court of New York 2007)
Palescandolo v. Carini (Appellate Division of the Supreme Court of New York 1999)
Troiano v. Ilaria (Appellate Division of the Supreme Court of New York 1996)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

*675Contrary to the defendants third-party plaintiffs’ contentions, the jury verdict apportioning liability was not against the weight of the evidence. The conflicting evidence presented a question of credibility which the jury resolved and the verdict was reached upon a fair interpretation of the evidence (see, Campbell v Driscoll, 190 AD2d 771; Nicastro v Park, 113 AD2d 129; see also, Rice v Massalone, 160 AD2d 861; Sic v Moran, 208 AD2d 607).

Further, it is well settled that the amount of damages to be awarded for personal injuries is primarily a question of fact for the jury (see, Rodriguez v City of New York, 191 AD2d 420; Florsz v Ogruk, 184 AD2d 546). An award is excessive or inadequate if it deviates materially from what would be reasonable compensation (see, CPLR 5501 [c]). Considering the totality of the plaintiff’s injuries and the period of disability accompanied by pain and suffering, we find that the jury verdict of $150,000 did not deviate materially from what would be reasonable compensation (see, CPLR 5501 [c]; Orris v Orris, 189 AD2d 866; Stern v Calzado, .163 AD2d 299).

However, we find that the judgment must be modified since the defendants third-party plaintiffs are not entitled to contribution from the third-party defendant until they have paid the plaintiff an amount in excess of their share of the judgment (see, CPLR 1402; see also, Klinger v Dudley, 41 NY2d 362, 369; McCabe v Queensboro Farm Prods., 22 NY2d 204; Adams v Lindsey, 77 Misc 2d 824, 826). O’Brien, J. P., Santucci, Altman and Goldstein, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.