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40 A.D.3d 1024 Page 1

40 A.D.3d 1024 (Cite as: 40 A.D.3d 1024, 837 N.Y.S.2d 702)

Conley v. City of New York 40 A.D.3d 1024, 837 N.Y.S.2d 702 *1025 NY,2007. Damages Future Damages 40 A.D.3d 1024837 N.Y.S.2d 702, 2007 WL 1560166, 2007 N.Y. Slip Op. 04587 In action by plaintiff, who suffered comminuted inter-articular fracture to distal radius of her hand as re- Carmen Conley, Appellant sult of trip and fall over raised and broken sidewalk, v jury's failure to award any damages for future pain City of New York, Respondent. and suffering was not based on fair interpretation of Supreme Court, Appellate Division, Second Depart- evidence; award of $75,000 for future pain and suf- ment, New York fering was appropriate; plaintiff suffered scar at incision site from surgery and had permanent metal plate May 29, 2007 inserted into her wrist; plaintiff had permanent condition and functioning of her wrist was significantly CITE TITLE AS: Conley v City of New York limited; while condition of her wrist had gradually improved over four years in both range of volar flexion motion and grip strength, there was still disparity, HEADNOTES in particular as to her range of motion, between that Negligence of her right and left wrists. Comparative Negligence Talisman & DeLorenz, P.C. (Richard Paul Stone, In action by plaintiff, who suffered comminuted in- New York, N.Y. of counsel), for appellant. ter-articular fracture to distal radius of her hand as re- Michael A. Cardozo, Corporation Counsel, New sult of trip and fall over raised and broken sidewalk, York, N.Y. (Pamela Seider Dolgow and Fay Ng of jury verdict finding her 80% at fault and defendant counsel), for respondent. 20% at fault in happening of accident was based on In an action to recover damages for personal injuries, fair interpretation of evidence; jury could have fairly the plaintiff appeals from an order of the Supreme concluded that defect was readily observable and Court, Kings County (Vaughan, J.), dated August 10, plaintiff should have avoided it. 2005, which denied her motion to set aside, as against the weight of the evidence, a jury verdict finding her Damages 80% at fault and the defendant only 20% at fault in Inadequate and Excessive Damages the happening of the subject accident, and, to set aside, on the ground of inadequacy, so much of the In action by plaintiff, who suffered comminuted in- verdict as awarded her damages in the principal sums ter-articular fracture to distal radius of her hand as re- of only $14,000 for past pain and suffering, and $0 sult of trip and fall over raised and broken sidewalk, for future pain and suffering, and for a new trial on li- award of damages for past pain and suffering $14,000 ability and on damages for past and future pain and was inadequate and was increased to $125,000-frac- suffering. ture required surgery, which included permanent insertion of metal plate with screws, three weeks of Ordered that the order is modified, on the facts and in casting and three months of physical therapy; during the exercise of discretion, by deleting the provision that time, plaintiff was unable to perform basic physi- thereof denying that branch of the motion which was cal tasks; four years after accident, plaintiff's volar to set aside the jury verdict on the issue of damages flexion range of motion had improved only to 30 de- for past and future pain and suffering, and substitut- grees, she had developed permanent condition of ing therefor a provision granting that branch of the traumatic arthritis and she had difficulty carrying motion and directing a new trial on the issue of dam- things.

40 A.D.3d 1024 (Cite as: 40 A.D.3d 1024, 837 N.Y.S.2d 702) ages for past and future pain and suffering; as so able compensation (seeCPLR 5501 [c]; Karwacki v modified, the order is affirmed, with costs payable to Astoria Med. Anesthesia Assoc., P.C. , 23 AD3d 438, the plaintiff, unless within 30 days after service upon 439 [2005]; Marrone v Orson Holding Corp ., 15 the defendant of a copy of this decision and order, the AD3d 631 [2005];cf. Torres v City of New York , 235 defendant shall serve and file in the office of the AD2d 416, 417 [1997]). Clerk of the Supreme Court, Kings County, a written stipulation consenting to increase the verdict as to Further, the jury's failure to award any damages for damages for past pain and suffering from the princi- future pain and suffering was not based on a fair in- pal sum of $14,000 to the principal sum of $125,000, terpretation of the evidence (see Lolik v Big V Super- and for future pain and suffering from the principal markets, supra; Fryer v Maimonides Med. Ctr. , 31 sum of $0 to the principal sum of $75,000, and the AD3d 604, 605 [2006]). It was undisputed that the net award of damages for past and future pain suffer- plaintiff suffered a scar at the incision site from the ing from the principal sum of $2,800 (20% of surgery and had a permanent metal plate inserted into $14,000) to the principal sum of $40,000 (20% of her wrist (see Simeon v Urrey , 278 AD2d 624, 625 $200,000); in the event the defendant so stipulates, [2000]). The experts for both the plaintiff and the de- then the order is affirmed, without costs or disburse- fendant agreed that the plaintiff had a permanent con- ments.**2 dition, and that the functioning of her wrist would be significantly limited. While the condition of her wrist The plaintiff suffered a comminuted inter-articular had gradually improved over four years in both range fracture to the distal radius of her right hand as the re- of volar flexion motion and grip strength, there was sult of a trip and fall over a raised and broken New still a disparity, in particular as to her range of mo- York City sidewalk. tion, between that of her right and left wrists (see Crawford v Marcello , 247 AD2d 907, 908 [1998];cf. Contrary to the plaintiff's contention, the jury's appor- LaPort v Bojedla , 262 AD2d 1025 [1999]). Accord- tionment of fault was based on a fair interpretation of ingly, the jury's failure to award any damages for fu- the evidence *1026 (see Lolik v Big V Supermarkets , ture pain and suffering is inadequate to the extent in- 86 NY2d 744, 746 [1995]; Nicastro v Park , 113 dicated herein (see Milne v Loyal Order of Moose AD2d 129 [1985]). The jury could have fairly con- Lodge No. 168 , 302 AD2d 569 [2003]; Garcia v cluded, based on the plaintiff's testimony, and the Spira , 273 AD2d 57 [2000]; Almada v Long Is. Light. photographs depicting the broken sidewalk, that the Co. , 246 AD2d 563 [1998]). Mastro, J.P., Santucci, defect was readily observable and the plaintiff should Krausman and Carni, JJ., concur. *1027 have avoided it (see Hospodar-Anikin v City of New York , 12 AD3d 405, 406 [2004]; Strauss v New York Copr. (c) 2010, Secretary of State, State of New York City Tr. Auth ., 294 AD2d 173 [2002]; Hodges v City NY,2007. of New York , 195 AD2d 269, 270 [1993]). Conley v City of New York

On the issue of damages for past pain and suffering, 40 A.D.3d 1024 the fracture to the plaintiff's wrist required surgery, which included the permanent insertion of a metal END OF DOCUMENT plate with screws, three weeks of casting, and three months of physical therapy. During that time, the plaintiff was unable to perform basic physical tasks. Four years after the accident, the plaintiff's volar flexion range of motion had improved only to 30 degrees, she had developed a permanent condition of traumatic arthritis, and she had difficulty carrying things. Ac- cordingly, the damages awarded for past pain and suffering are inadequate as to the extent indicated, as they deviate materially from what would be reason-