Summary
approving award of $250,000 for past pain and suffering for fractured tibia and fibia and a tear of the interosseous membrane, which required open reduction internal fixation surgery
Summary of this case from Soto v. United StatesOpinion
1831
October 10, 2002.
Order and judgment (one paper), Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered on or about September 28, 2000, which, inter alia, upon a jury verdict as reduced pursuant to stipulation, awarded plaintiff damages, before structuring, of $250,000 for past pain and suffering and $500,000 for future pain and suffering, unanimously modified, on the facts, to reinstate the jury's verdict of $950,000 for future pain and suffering, and otherwise affirmed, without costs.
PATRICK DANIEL, for plaintiff-respondent-appellant.
MARTA ROSS, for defendant-appellant-respondent.
Before: Williams, P.J., Nardelli, Mazzarelli, Marlow, Gonzalez, JJ.
The issue of whether a Big Apple map showing a broken or uneven curb and an obstruction protruding from the sidewalk gave defendant sufficient notice of the broken sidewalk on which plaintiff testified he fell was for the jury to decide (see e.g. Johnson v. City of New York, 280 A.D.2d 271, 272; Patane v. City of New York, 284 A.D.2d 513, 514-515). The notice requirement of Administrative Code of the City of New York § 7-201(c) is construed strictly against the City, and "a notice is sufficient if it brought the particular condition at issue to the attention of the authorities" (Weinreb v. City of New York, 193 A.D.2d 596, 598 [internal quotation marks omitted]).
The jury's award of $950,000 for future pain and suffering over 39.6 years (i.e. $23,989.89 per year) should not have been reduced. Plaintiff sustained a fracture of the tibia and fibula and a tear of the interosseous membrane, requiring open reduction and internal fixation with a metal rod and screws. He will need a future operation to replace the rod and screws. The injury has resulted in atrophy and a limitation of plaintiff's physical activities, and plaintiff suffers ongoing pain. The weakness and pain in plaintiff's leg will be permanent. Under these circumstances, the jury's award cannot be said to have deviated materially from what is reasonable compensation (see CPLR 5501[c]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.