Opinion
4987N
December 27, 2001.
Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered May 1, 2001, which granted plaintiff's motion to set aside the awards for past and future pain and suffering to the extent of directing a new trial on damages unless defendants stipulated to increase the award for past pain and suffering from $25,000 to $250,000 and for future pain and suffering from $0 to $150,000, unanimously affirmed, without costs.
RALPH R. NOBILE, for Plaintiffs-Respondents.
LARRY H. LUM, for Defendants-Appellants.
Before: Rosenberger, J.P., Nardelli, Ellerin, Saxe, JJ.
The awards for past and future pain and suffering were properly set aside upon a record showing that plaintiff suffered a comminuted fracture of the right elbow when he was 15 years old, which required two surgical procedures under general anesthesia over a four-year period, and involves continuing limitation of motion and a likelihood of, inter alia, arthritis in the elbow at a relatively young age (cf., Roshwalb v. Regency Mar. Corp., 182 A.D.2d 401, lv denied 80 N.Y.2d 756; Matinez v. Gouverneur Gardens Hous. Corp., 184 A.D.2d 264, 267, lv denied 80 N.Y.2d 759). Defendant's argument that the verdict was a compromise is improperly raised for the first time on appeal (cf., Gribbon v. Missionary Sisters of Sacred Heart, 244 A.D.2d 185), and we decline to review it. In any event, the claim lacks merit since it does not appear that liability was a close issue at trial (see, Figliomeni v. Board of Educ., 38 N.Y.2d 178, 182).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.