Toribio v. J.D. Posillico, Inc.

297 A.D.2d 216, 746 N.Y.2d 148, 746 N.Y.S.2d 148, 2002 N.Y. App. Div. LEXIS 7858

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 8, 2002
• Status: Published

Opinion

In this personal injury action in which plaintiff seeks damages for a comminuted fracture of the right tibia and other leg injuries resulting from twisting his leg when he stepped off a curb into a water-filled depression in a street under construction, we find that the trial court erred in setting aside the verdict to the extent indicated. The jury award of only $40,000 for past pain and suffering did not constitute reasonable compensation under the circumstances. However, we cannot say that its failure to award any damages for future pain and suffering did not represent an appropriate weighing of the evidence, which included a videotape of plaintiff performing his daily work routines.

Defendant’s answer was stricken for frustrating discovery (268 AD2d 394), and, as a result, it admitted all traversable allegations in the complaint, including the basic allegation of liability (see, Brown v Rosedale Nurseries, 259 AD2d 256). In any event, there was evidence, within the ken of an ordinary juror, that defendant was negligent in leaving the depression it created without putting up barricades or warnings. Under the circumstances, plaintiff was not required to produce expert testimony to demonstrate that the City plans and specifications followed by defendant were so defective that it should have been on notice of the dangerous condition.

We have considered defendant’s other contentions and find them unavailing.. Concur — Nardelli, J.P., Sullivan, Wallach, Rubin and Friedman, JJ.