Hof v. Gromoll

Appellate Division of the Supreme Court of New York

Hof v. Gromoll

26 A.D.2d 850, 274 N.Y.S.2d 187, 1966 N.Y. App. Div. LEXIS 3342

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 20, 1966

StatusPublished

This text of 26 A.D.2d 850 (Hof v. Gromoll) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hof v. Gromoll, 26 A.D.2d 850, 274 N.Y.S.2d 187, 1966 N.Y. App. Div. LEXIS 3342 (N.Y. Ct. App. 1966).

Pincite

Opinion

Herlihy, J.

Appeal by the defendants from a judgment after a jury trial in the amount of $19,026.95. The sole issue on this appeal is whether or not the sum of $17,000 awarded the plaintiff, August E. Hof, Jr., by the jury for pain and suffering and permanent residual loss of use of his arm is excessive. The injury was a fracture of the radial head of the left elbow with severe laceration. The plaintiff’s doctor, after testifying to treatment, operation and care of the plaintiff, stated that when he last examined him several months prior to the trial he found he had recovered “close to a maximum degree with some residual loss” not to exceed 10 degrees. The defendants’ doctor, who examined the plaintiff about four months subsequent to the accident, stated that at that time there was approximately 15% loss of flexion and extension, but that continued therapy and massage would cause continued improvement with a partial permanency of 5% to 10% loss of flexion and extension at the elbow joint. The plaintiff testified that he returned to work in about five and one-half weeks and approximately two months thereafter he was back into the “swing of things” although the condition of his elbow and arm hindered him somewhat in his work and that on occasions he suffered pain in the arm. A reading of the testimony of the plaintiff given at the trial approximately one and one-half years following the accident is convincing evidence that the residual limitations from the accident were minimal and that, under the circumstances, the verdict was and is excessive. Judgment reversed, on the law and the facts, and a new trial ordered, with costs to abide the event unless, within 20 days after the service of a copy of the order to be entered hereon, respondent shall stipulate to reduce the verdict to $14,026.95 with interest, in which event judgment, as reduced, affirmed, without costs. Gibson, P. J., Reynolds and Staley, Jr., JJ., concur; Taylor, J., not voting.

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Herlihy, J.

Appeal by the defendants from a judgment after a jury trial in the amount of $19,026.95. The sole issue on this appeal is whether or not the sum of $17,000 awarded the plaintiff, August E. Hof, Jr., by the jury for pain and suffering and permanent residual loss of use of his arm is excessive. The injury was a fracture of the radial head of the left elbow with severe laceration. The plaintiff’s doctor, after testifying to treatment, operation and care of the plaintiff, stated that when he last examined him several months prior to the trial he found he had recovered “close to a maximum degree with some residual loss” not to exceed 10 degrees. The defendants’ doctor, who examined the plaintiff about four months subsequent to the accident, stated that at that time there was approximately 15% loss of flexion and extension, but that continued therapy and massage would cause continued improvement with a partial permanency of 5% to 10% loss of flexion and extension at the elbow joint. The plaintiff testified that he returned to work in about five and one-half weeks and approximately two months thereafter he was back into the “swing of things” although the condition of his elbow and arm hindered him somewhat in his work and that on occasions he suffered pain in the arm. A reading of the testimony of the plaintiff given at the trial approximately one and one-half years following the accident is convincing evidence that the residual limitations from the accident were minimal and that, under the circumstances, the verdict was and is excessive. Judgment reversed, on the law and the facts, and a new trial ordered, with costs to abide the event unless, within 20 days after the service of a copy of the order to be entered hereon, respondent shall stipulate to reduce the verdict to $14,026.95 with interest, in which event judgment, as reduced, affirmed, without costs. Gibson, P. J., Reynolds and Staley, Jr., JJ., concur; Taylor, J., not voting.

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Bluebook (online)

26 A.D.2d 850, 274 N.Y.S.2d 187, 1966 N.Y. App. Div. LEXIS 3342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hof-v-gromoll-nyappdiv-1966.