Elescano v. Eighth-19th Co.

17 A.D.3d 250, 794 N.Y.S.2d 316, 2005 N.Y. App. Div. LEXIS 4228

Opinion

Judgment, Supreme Court, New York County (Nicholas Figueroa, J., and a jury), entered April 5, 2004, in an action by a construction worker for personal injuries, awarding, inter alia, $100,000 for past pain and suffering and, insofar as appealed from, $50,000 for future pain and suffering over 37 years, unanimously modified, on the facts, to vacate the award for future pain and suffering and direct a new trial on that issue only, and otherwise affirmed, without costs, unless third-party defendant-respondent, within 30 days of service of a copy of this order with notice of entry, stipulates to increase the award for future pain and suffering to $200,000, and to the entry of an amended judgment in accordance therewith.

Plaintiff suffered a ruptured rotator cuff that required physical therapy three times a week for about a year, then surgery, then six more months of physical therapy, and then home exercise of 30 to 40 minutes a day continuing through the trial. Plaintiffs treating physician stated that the injury will cause plaintiff permanent and worsening chronic pain; defendant’s expert acknowledged that plaintiff has a permanent partial disability with intermittent symptoms that can be painful with extreme motions. Under the circumstances, the award for future pain and suffering deviates materially from what is reasonable compensation under the circumstances (cf. Murakami v Machinist, 3 AD3d 336 [2004]), and we accordingly modify as above indicated. Concur—Tom, J.P., Mazzarelli, Friedman, Gonzalez and Catterson, JJ.