Noga v. Monroe Medi-Trans

Callahan, J. (dissenting).

I agree with the principles enunciated in the majority memorandum; however, in my view it is an injustice to affirm this verdict. The majority stress the obligation which the trial court should perform, yet permit a harsh and shocking result to stand when the court fails to comply with the promulgated criteria. A $500 general verdict in favor of the plaintiff, who sustained serious and permanent injury including limitation of motion resulting from a fractured wrist, is shocking to one’s conscience as grossly inadequate, without any knowledge of the percentage of the respective fault attributable to the plaintiff and defendant. Since we may not speculate or *989arbitrarily assign percentage of fault, a new trial is mandated which will determine proper allocation of fault between these litigants. The error was so fundamental that a new trial should be granted in the interest of justice (see Titlebaum v Loblaws, Inc., 64 AD2d 822, 823; Bolm v Triumph Corp., 58 AD2d 1014, 1015; Di Grazia v Castronova, 48 AD2d 249). (Appeal from judgment of Monroe Supreme Court — negligence.) Present — Dillon, P. J., Schnepp, Callahan, Doerr and Witmer, JJ.