Vargas v. ML 1188 Grand Concourse

24 A.D.3d 104, 804 N.Y.S.2d 745

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 1, 2005
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Howard R. Silver, J.), entered on or about June 15, 2005, awarding plaintiff damages for past and future pain and suffering in the principal amounts of $100,000 and $200,000, respectively, upon her stipulation in lieu of a new trial on the issue of damages reducing the jury’s awards for past and future pain and suffering from $160,000 and $500,000 (over 20 years), respectively, unanimously modified, on the facts, to reinstate the $160,000 award for past pain and suffering, and increase the $200,000 award for future pain and suffering to $300,000, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered November 26, 2004, which set aside the award of damages, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

As a result of the accident, plaintiff, then 54 years old, sustained radiculopathy at L5-S1 with nerve root compression, a herniated disc at L2-L3, and soft tissue injuries to the neck and back. She was treated by an orthopedist and physical therapist for eight months after the accident and had lumbar surgery four years after the accident, but at the time of trial, more than five years after the accident, still had pain in the lower back for which she takes medicine, and otherwise continued to suffer a loss of enjoyment of life. In these circumstances, the jury’s award for future pain and suffering deviated materially from what is reasonable compensation to the extent indicated, but its award for past pain and suffering should not have been disturbed (cf. Skow v Jones, Lang & Wooton Corp., 240 AD2d 194 [1997], Iv denied 94 NY2d 758 [1999]). Concur— Buckley, EJ., Nardelli, Williams, Gonzalez and McGuire, JJ.