Laraby v. Village of Potsdam Housing Authority

252 A.D.2d 603, 675 N.Y.S.2d 228, 1998 N.Y. App. Div. LEXIS 8036

Opinions

—Crew III, J.

Appeal from an order of the Supreme Court (Demarest, J.), entered April 4, 1997 in St. Lawrence County, which denied plaintiffs’ motion for a new trial on the issue of damages.

Plaintiff Joseph Laraby (hereinafter Laraby) and his spouse, derivatively, commenced this action against defendants for personal injuries allegedly sustained when Laraby slipped and fell in the parking lot of the apartment complex where plaintiffs lived. At the conclusion of the trial that followed, the jury found that defendants indeed were negligent and apportioned liability 50% to Laraby and 50% to defendants. As to damages, the jury awarded $3,093.74 for medical expenses but elected not to award a sum for Laraby’s pain and suffering or his spouse’s derivative claim. Plaintiffs’ subsequent motion for a new trial on the issue of damages was denied and this appeal ensued.

Although the record fully supports the jury’s decision not to award a sum for Laraby’s future pain and suffering and/or his spouse’s derivative claim, we reach a contrary finding with respect to Laraby’s pain and suffering up to the time of verdict. In awarding a sum for medical expenses, the jury necessarily found that Laraby indeed sustained an injury. Having done so, and in view of Laraby’s uncontroverted testimony as to the pain that he experienced following his fall, the jury’s failure to award any damages for Laraby’s past pain and suffering necessarily “deviates materially from what would be reasonable compensation” (CPLR 5501 [c]). Accordingly, we must remit this matter for a new trial on the issue of damages insofar as it relates to Laraby’s past pain and suffering.

Mikoll, J. P., and Yesawich Jr., J., concur.