Appeals: Mildred Hersh v. New York City Transit Authority (Final Appeal)

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Mildred Hersh, Plaintiff-Respondent-Appellant, v. New York City Transit Authority, et al., Defendants-Appellants-Respondents 1579
2002 N.Y. App. Div. LEXIS 8453
September 19, 2002, Decided
September 19, 2002, Entered

For Plaintiff-Respondent-Appellant: Edward Sivin.
For Defendants-Appellants-Respondents: Lawrence A. Silver.

JUDGES: Wallach, J.P., Lerner, Rubin, Friedman, Gonzalez, JJ.

OPINION: Judgment, Supreme Court, New York County (Marylin Diamond, J.), entered February 25, 2002, which, inter alia, upon a jury verdict as reduced pursuant to plaintiff's stipulation and upon the jury's finding that plaintiff was 67% at fault and defendants 33% at fault, awarded plaintiff damages, unanimously affirmed, without costs.

The evidence, viewed in the light most favorable to plaintiff, adequately set forth a prima facie case of negligence against defendants (see Brito v Manhattan & Bronx Surface Tr. Operating Auth., 188 A.D.2d 253, 590 N.Y.S.2d 450, appeal dismissed 81 N.Y.2d 993, 599 N.Y.S.2d 798, 616 N.E.2d 153). Fairly considered, however, the trial evidence permitted the jury to apportion liability as it did (cf. Cohen v Simmons, 240 A.D.2d 191, 658 N.Y.S.2d 29).

We note in this latter connection the evidence that plaintiff wore neither [*2] her glasses nor her hearing aid at the time of the accident and failed to observe defendants' bus until it hit her.

The damages awarded plaintiff, as reduced, did not materially deviate from what is reasonable compensation under the circumstances (see CPLR 5501[c]). The award, although sizable, is in accord with the evidence showing that, despite her advanced age, plaintiff led an active and vibrant life prior to the accident, and that in the accident's aftermath, following the amputation of both of her legs at the groin, plaintiff is confined to a wheelchair and will require 24-hour care for the remainder of her life.


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