10.6 E. Inadequate or Excessive Damage Awards

LibraryNY Post-Trial Practice & Procedures 2010

The issue of damages is factual and, thus, is essentially a determination for the jury.587 When damages are awarded on a jury’s verdict in a money action at a figure deemed too low or too high by the trial court, the trial court can raise or lower the figure through the use of devices popularly known as additur and remittitur.588 The trial court does not substitute the figure it deems the minimum or maximum. It merely grants a motion for a new trial, made by the aggrieved party on the ground of the inadequacy or excessiveness of the verdict, unless the defendant agrees to pay a higher sum (additur) or the plaintiff agrees to accept a lower sum (remittitur) than the verdict.589

The appellate court may order a new trial unless plaintiff agrees to reduce the award to whatever amount the court deems appropriate if the court finds that the award “deviates materially from what would be reasonable compensation.”590 Where the trial court has determined that the jury verdict is excessive or inadequate, the appellate division has a duty to review the testimony and to reverse the order and reinstate the verdict if it is apparent that the evidence justified the jury in fixing the damages at the amount of its verdict.591 Where the plaintiff’s consent to a reduction of the award is required and it is not given, the appellate court can only reverse the judgment and grant a new trial, even where it is improbable that the record will be changed on another trial.592

At least one commentator has opined that the appellate division has been more attentive in recent years to remedying excessive jury verdicts.593 Even so, the appellate division generally is reluctant to interfere with the verdict based on the excessiveness of...

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