UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R U L I N G S BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY

O R D E R S FILED AFTER JANUA R Y 1, 2007, IS PER M I T T E D AN D IS G O V E R N E D B Y TH I S CO U R T ' S

L O C A L RULE 0.23 AND FEDERAL RULE O F APPELLATE PRO C E D U R E 32.1. IN A BRIEF OR OTHER

P A P E R IN WHICH A LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN W H I C H A

C IT A TI O N APPEA R S , AT LEAST O N E CITATION MUST EITH E R BE T O T H E FED E R A L AP P E N D I X OR

B E ACCOM P A N I E D BY TH E N O T A T I O N : " ( S U M M A R Y O R D E R

I S AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE WITHOUT

P A Y M E N T OF FEE (SUCH AS THE DATABASE AVAILABLE AT http://www.ca2.uscourts.gov/), THE

P A R T Y CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY

O R D E R TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY

I S SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE

C IT A TI O N MUST INCLUDE REFER E N C E TO TH A T DATABASE AN D THE DO C K E T NUMBER OF THE

C A S E IN WHICH THE ORDER WAS ENTERED.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,

on the 25th day of January, two thousand and seven.

PRESENT:

HON. CHESTER J. STRAUB,

HON . PETER W. HALL,

Circuit Judges,

*

HON. DAVID G. TRAGER, District Judge. FRED EHRLICH AND FLORENCE EHRLICH, Plaintiffs-Appellants-Cross-Appellees, v. SUMMARY ORDER Nos. 05-5784-cv (L); 05- 6221-cv (xap) CHRISTIAN DEAN GIFFIN** AND TRANS BRIDGE LINES, INC., Defendants-Appellees-Cross-Appellant. Ehrlich v. Giffin, No. 05-5784-cv (L) Appearing for Appellants: BR I A N J. ISAAC, Pollack, Pollack, Isaac & De Cicco, New York, N.Y.

Appearing for Appellees: A. LORENZO BRYAN, New York, N.Y.

Appeal from a final decision of the United States District Court for the Southern District of New York (Frank Maas, Magistrate Judge).

AFTER ARGUMENT AND UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is hereby AFFIRMED.

Plaintiffs-Appellants Fred and Florence Ehrlich appeal from a judgment following a jury verdict of $760,000 in their favor against Defendants-Appellees Christian Dean Giffin and Trans Bridge Lines, Inc. ("Trans Bridge"). On February 17, 2004, Fred Ehrlich was injured when he was struck by a bus driven by Giffin and owned by Trans Bridge. On appeal, both parties challenge the District Court's denial of their motions under Federal Rule of Civil Procedure 50(b). The Ehrlichs' challenge the jury's finding that Fred Ehrlich was 20% at fault in the accident. The defendants cross-appeal, contending that the facts adduced at trial do not support a verdict of $650,000 for past pain and suffering.

We assume familiarity with the relevant facts, procedural history, and specification of issues on appeal, and as we find neither party's arguments persuasive, we affirm. Given Ehrlich's equivocation on whether he crossed the street with the light and Giffin's testimony that he had a green left-turn arrow, the jury could have reasonably concluded that Ehrlich crossed against the traffic light, but that Giffin acted negligently in failing to see and avoid a pedestrian.

Ehrlich v. Giffin, No. 05-5784-cv (L) See N.Y. City R. & Regs. tit. 34, § 4-03(c)(3) (stating that pedestrians facing a "[s]teady DON'T WALK red hand symbol or red standing figure . . .shall not enter or cross the roadway."); § 404(d) ("Notwithstanding other provisions of these rules, the operator of a vehicle shall exercise due care to avoid colliding with any pedestrian.").

At oral argument, counsel for the defendants-appellees conceded that his appeal was without merit. We agree. Under N.Y.C.P.L.R. § 5501(c), an award of damages must be reduced if it "deviates materially from what would be reasonable compensation." Cross v. New York City Transit Auth., 417 F.3d 241, 258 (2d Cir. 2005) (internal quotation marks omitted). To determine whether an award "deviates materially from what would be reasonable compensation," New York state courts look to awards approved in similar cases and to analogous cases.

Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 425 (1996) (internal quotation marks omitted). The defendants-appellees cite to no case involving similar injuries and holding that $650,000 for past pain and suffering was excessive, nor to any case involving similar injuries that found that a lower figure was reasonable. Accordingly, we will not disturb the jury's quant ifica tion of Ehrlich's pain and suffering.

For the foregoing reasons, the judgment of the District Court is hereby AFFIRMED.

FOR THE COURT: T H O M A S ASREEN, ACTING CLERK OF THE COURT BY:

* The Honorable David G. Trager of the United States District Court for the Eastern District of New York, sitting by designation. ** The Clerk of Court is instructed to change the spelling of Mr. Giffin's name from "Griffin" to "Giffin" in the official caption.