Dean Dillen v. County Erie

Judgment unanimously modified and, as modified, affirmed, with costs to plaintiff, in accordance with the following memorandum: In its appeal from a judgment awarding damages for conscious pain and suffering and wrongful death arising out of the drowning of the 15-year-old infant decedent at a school picnic, defendants principal contention is that the verdicts (as reduced by apportioning 65% of the fault to decedent) in the amounts of $35,000 for wrongful death and $5,000 for conscious pain and suffering were excessive. We disagree (see De Long v County of Erie, 60 N.Y.2d 296; Parilis v Feinstein, 49 N.Y.2d 984; Franchell v Sims, 73 A.D.2d 1). There was no error in the courts exercise of its discretion in granting plaintiff leave to amend its complaint to allege a cause of action for conscious pain and suffering inasmuch as such claim was asserted in the notice of claim filed pursuant to section 50-e of the General Municipal Law and no prejudice was shown (CPLR 3025, subd [b]; see Fahey v County of Ontario, 44 N.Y.2d 934).