Gainey v. City of New York

Appellate Division of the Supreme Court of New York

Gainey v. City of New York

278 A.D.2d 102, 718 N.Y.S.2d 36, 2000 N.Y. App. Div. LEXIS 13098

Appellate Division of the Supreme Court of the State of New York·Decided December 14, 2000·Published·Cited by 3 cases

Opinion

Judgment, Supreme Court, Bronx County (Kenneth Thompson, Jr., J.), entered October 7, 1999, which, upon a jury verdict, awarded plaintiff, inter alia, $300,000 for past pain and suffering and $300,000 for future pain and suffering structured pursuant to CPLR article 50-B, unanimously affirmed, without costs.

Although defendant City contends that plaintiff failed to make out a prima facie case that it caused and/or created the defect that allegedly resulted in plaintiff’s trip and fall, the testimony of plaintiff’s expert, viewed in the light most favorable to plaintiff (see, McCummings v New York City Tr. Auth., 81 NY2d 923, 926, cert denied 510 US 991; see also, Van Diepen v Kidder, Peabody & Co., 244 AD2d 151, 152, lv denied 91 NY2d 813), furnished an adequate basis for the jury’s conclusion that defendant did in fact cause and/or create the alleged hazard. The jury was not required to accept the City’s unsupported conjecture that the steep slope in the path to which plaintiff’s accident and injury were attributed had been caused by some natural mechanism.

There is no merit to defendant’s claim that the damages awarded plaintiff for his past and future pain and suffering are excessive and deviate materially from what is reasonable compensation. As a consequence of the subject accident, plaintiff sustained a ruptured muscle and quadriceps tendon, significant injuries that necessitated eight days of hospitalization, surgical repair followed by many months in a cast and a brace, and that have caused plaintiff substantial pain and left [103] him in a permanently and progressively debilitating physical condition. Concur — Rosenberger, J. P., Williams, Tom, Ellerin and Wallach, JJ.

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Judgment, Supreme Court, Bronx County (Kenneth Thompson, Jr., J.), entered October 7, 1999, which, upon a jury verdict, awarded plaintiff, inter alia, $300,000 for past pain and suffering and $300,000 for future pain and suffering structured pursuant to CPLR article 50-B, unanimously affirmed, without costs.

Although defendant City contends that plaintiff failed to make out a prima facie case that it caused and/or created the defect that allegedly resulted in plaintiff’s trip and fall, the testimony of plaintiff’s expert, viewed in the light most favorable to plaintiff (see, McCummings v New York City Tr. Auth., 81 NY2d 923, 926, cert denied 510 US 991; see also, Van Diepen v Kidder, Peabody & Co., 244 AD2d 151, 152, lv denied 91 NY2d 813), furnished an adequate basis for the jury’s conclusion that defendant did in fact cause and/or create the alleged hazard. The jury was not required to accept the City’s unsupported conjecture that the steep slope in the path to which plaintiff’s accident and injury were attributed had been caused by some natural mechanism.

There is no merit to defendant’s claim that the damages awarded plaintiff for his past and future pain and suffering are excessive and deviate materially from what is reasonable compensation. As a consequence of the subject accident, plaintiff sustained a ruptured muscle and quadriceps tendon, significant injuries that necessitated eight days of hospitalization, surgical repair followed by many months in a cast and a brace, and that have caused plaintiff substantial pain and left [103] him in a permanently and progressively debilitating physical condition. Concur — Rosenberger, J. P., Williams, Tom, Ellerin and Wallach, JJ.

Gainey v. City of New York, 278 A.D.2d 102, 718 N.Y.S.2d 36, 2000 N.Y. App. Div. LEXIS 13098 (N.Y. Ct. App. 2000).

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Opinion

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