Pinelli v. Mall Ice Skating Rink, Inc. (59 A.D.2d 839, 1977)

Interlocutory judgment, Supreme Court, Bronx County, entered July 13, 1976, in favor of the plaintiffs on the issue of liability, unanimously affirmed, without costs and without disbursements. Order, Supreme Court, Bronx County, entered July 12, 1976, inter alia, granting plaintiffs’ motion to set aside the jury verdict in favor of Alberta Pinelli, in the amount of $15,000, on the grounds of inadequacy, and directing a new trial on the issue of damages, unanimously modified, on the law and the facts and in the exercise of discretion, without costs and without disbursements, to the extent of directing a new trial on the issue of damages only, unless defendant stipulates, within 20 days of service of a copy of the order to be entered herein, with notice of entry, to increase the verdict in favor of Alberta Pinelli to $25,000, in which event the order appealed from is so modified and otherwise affirmed, and judgment is directed to be entered accordingly in favor of the plaintiff, without costs or disbursements. As a result of plaintiff’s fall on defendant’s property, the radial head of the elbow of her right arm was split. Plaintiff has not regained full use of the arm. There is also a resultant traumatic arthritis which will become progressively more severe. Under all the facts of this case, the sum of $25,000 is more representative of the damages incurred, and we have, as we are so empowered (CPLR 5522; O’Connor v Papertsian, 309 NY 465) conditioned the avoidance of a new trial on a stipulation to that effect. Concur— Kupferman, J. P., Lupiano, Birns and Lane, JJ.