Appeals: Major Singh v. Gladys Towncars, Inc.

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Major Singh, et al., Plaintiffs-Respondents, v Gladys Towncars Inc., et al., Defendants-Appellants.
Index 15134/03
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
2007 NY Slip Op 5831; 42 A.D.3d 313; 839 N.Y.S.2d 734; 2007 N.Y. App. Div. LEXIS 8175
July 5, 2007, Decided
PRIOR HISTORY: Singh v. Gladys Towncars Inc., 2006 N.Y. App. Div. LEXIS 10141 (N.Y. App. Div. 1st Dep't, Aug. 10, 2006)

CASE SUMMARY

PROCEDURAL POSTURE: Defendants appealed a default judgment by the Bronx County Supreme Court (New York) in favor of plaintiffs, a husband and his wife, that denied the defendants' motion to vacate their defaults pursuant to CPLR 5015(a)(1).

OVERVIEW: The appellate court found that the plaintiffs' motion papers made a sufficient showing of merit for purposes of default under CPLR 3215, and that the motion was properly granted. While the defendants' renewal motion attempted to explain the lateness as a result of non-service, they gave no reason why they did not offer that explanation in their opposition to the motion for a default judgment, in accordance with CPLR 2221(e)(3). Therefore, the trial court properly denied the defendants' motion to vacate their defaults pursuant to CPLR 5015(a)(1). The husband's awards for past and future pain and suffering materially deviated from what was reasonable compensation for a fracture of the tibia and fibula with nerve damage. The wife's awards for past and future loss of services also deviated from what was reasonable compensation. However, The award for future lost earnings was not against the weight of the evidence.

OUTCOME: The judgment was unanimously modified to reduce the awards for past and future pain and suffering, and for past and future loss of services; the judgment was otherwise affirmed.

CORE TERMS: loss of services, default judgment, reasonable compensation, suffering, lateness, fracture, default, deviate, pain.

COUNSEL:
Russo, Keane & Toner, LLP, New York (Thomas F. Keane of counsel), for appellants.
Sivin & Miller, LLP, New York (Edward Sivin of counsel), for respondents.

JUDGES: Mazzarelli, J.P., Saxe, Marlow, Nardelli, Gonzalez, JJ.

OPINION: [**313] [***734] Judgment, Supreme Court, Bronx County (Norma Ruiz, J.), entered April 6, 2005, after an inquest, in favor of plaintiffs and against defendants, unanimously modified, on the facts, to reduce the $ 2 million awards for past and future pain and suffering [***735] in favor of plaintiff husband to $ 1 million for each, and the $ 200,000 awards for past and future loss of services in favor of plaintiff wife to $ 50,000 for each, and otherwise affirmed, without costs. The Clerk is directed to enter an amended judgment accordingly.

Defendants' opposition to plaintiffs' motion for a default judgment did not purport to show either a reasonable excuse for their default or a meritorious defense, but argued instead, through their attorney, that the motion did not satisfy the proof requirements of CPLR 3215(f). Defendants also argued that their proposed answer, while "admittedly late if service was proper," should nevertheless be accepted because plaintiffs did not reject it by returning it, and also because plaintiffs were not prejudiced by the lateness. We find that plaintiffs' motion papers made a sufficient showing of merit for purposes of CPLR 3215, and that the motion was properly granted. Defendants' subsequent motion to vacate their defaults pursuant to CPLR 5015(a)(1) was properly deemed a motion to renew or reargue (cf. Spatz v Bajramoski, 214 A.D.2d 436, 436, 624 N.Y.S.2d 606 [1995]), and, insofar as appealable, properly denied. While the renewal motion attempts to explain the lateness as a result of non-service, defendants gave no reason why they did not offer that explanation in their opposition to the motion for a default judgment (CPLR 2221[e][3]), and we decline to consider the reasons they now offer for the first time on appeal.

[**314] To the extent indicated, the awards for past and future (over 31 years) pain and suffering materially deviate from what is reasonable compensation for a fracture of the tibia and fibula with nerve damage, requiring a five-week hospitalization and an internal fixation open reduction procedure involving surgical hardware that continues to remain in plaintiff's leg, and also for several fractures of facial bones (cf. Bingham v New York City Tr. Auth., 25 AD3d 433, 808 N.Y.S.2d 197 [2006], affd on other grounds 8 NY3d 176, 864 N.E.2d 49, 832 N.Y.S.2d 125 [2007]; Bajwa v Saida, Inc., 6 AD3d 471, 774 N.Y.S.2d 427 [2004]), and we reduce such awards accordingly. Plaintiff wife's $ 200,000 awards for past and future loss of services also deviate from what is reasonable compensation (cf. Davis v City of New York, 273 A.D.2d 342, 709 N.Y.S.2d 587 [2000]; Hernandez v Melro Co., 229 A.D.2d 565, 646 N.Y.S.2d 44 [1996]). The $ 465,000 award for future lost earnings (over 15.5 years) is not against the weight of the evidence.

[*2] We have considered defendants' remaining arguments and find them without merit.

ENTERED: JULY 5, 2007

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