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A New York Supreme Court justice has ordered parties in a personal injury action to either accept a sevenfold increase in a jury award, or prepare for a new trial on damages. The relatively uncommon decision by Justice Robert F. Julian comes in the case of a 1994 automobile accident in which a 15-year-old passenger broke his left leg and right foot. Kenneth DeRito, the plaintiff, was totally disabled for several months and will continue to suffer pain and inconvenience resulting from the accident, according to a decision released this week. Julian said in DeRito v. Joyce, 99-39990, that the jury’s Feb. 21 award of $12,000 for past pain and suffering “cannot be reached based upon any fair interpretation of the evidence,” and ordered an increase to $100,000. He found the award of $6,000 for future pain and suffering “without any rational basis in the record” and boosted that component to $25,000. The court cited a litany of Appellate Division cases, primarily from New York’s 4th Department, in support of both the amounts ordered and the proposition that a trial judge can increase compensation when a jury’s award deviates materially from what would constitute reasonable compensation. For instance, the 4th Department in LaPort v. Bojedla, 262 AD2d 1025 (1999) increased from $15,000 to $85,000 a pain and suffering award where a minor pedestrian was struck by a car. In Faulise v. Trout, 254 AD2d 755, the 4th Department ordered $80,000 in past pain and suffering damages and $10,000 for future pain and suffering in a matter involving a 7-year-old girl who was hit by a car; the jury had awarded a total of $10,000. Moreover, the 4th Department increased past and future pain and suffering awards from $20,000 to $50,000 and $15,000 to $100,000, respectively, in Murray v. Makey, 229 AD2d 919 (1996). And in Fenocchi v. City of Syracuse, 216 AD2d 864 (1995), the 4th Department awarded $190,000 in damages to an injured motorcyclist who had been awarded $16,500 by the jury. Terrance J. Hoffmann of Hoffmann, Hubert & Hoffmann in Syracuse, N.Y., counsel for the plaintiff, said he is not confident that a stipulation can be reached with New York Central, the insurance company in the DeRito matter, and expects a retrial on damages. Keith D. Miller of Sugarman, Wallace, Manheim & Schoenwald in Syracuse appeared for the defendants.

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