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Desroches v. Vartigan

Appellate Division of the Supreme Court of New York, Third Department
May 1, 1967
28 A.D.2d 574 (N.Y. App. Div. 1967)

Opinion

May 1, 1967


Appeal by plaintiff, on the ground of inadequacy, from a judgment entered upon a verdict in a personal injury negligence action. Plaintiff's attending physician diagnosed a sprain of the neck which did not cause "much difficulty" and from which plaintiff recovered, and a low back sprain which the doctor considered chronic. This physician testified, also, to plaintiff's urinary incontinence. To investigate the latter condition he called in consultation, first, a urologist who found no injury to the bladder or kidneys and diagnosed a mild cystitis, unrelated to the accident. The attending physician, still seeking the cause of the urinary condition, then called in a neurosurgeon who found no spinal or other injury to account for it. Much later, indeed two and one-half years after the accident, plaintiff consulted an orthopedist who attributed plaintiff's complaints of back pain to a shortened leg, the condition being unrelated to the accident but resulting from growth discrepancy as between the two legs. The doctor considered, however, that the accident aggravated the condition so as to cause the pain complained of; but said that the use of a lift, which he had prescribed, in plaintiff's footgear under his left heel, eliminated the pain, even when plaintiff engaged in very active work. Defendants' examining physician, on the basis of other physicians' reports and of his own examination, assumed a lumbosacral strain but found no residuals and no permanency. Upon all the proof, the jury was entitled to, and apparently did, accept the medical evidence and the proof as to plaintiff's seasonal employment and earnings least favorable to plaintiff. On this basis the jury could find (1) that plaintiff's injuries consisted principally of a minor neck sprain and a somewhat more serious low back sprain from which he recovered with no permanent effects and (2) that his special damages were substantially less than $585, that figure including some unsegregated amounts incurred on account of the unrelated urinary condition. The verdict of $2,500 was not so shocking as to permit of interference with it on the part of an appellate court. Judgment affirmed, without costs. Gibson, P.J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum Per Curiam.


Summaries of

Desroches v. Vartigan

Appellate Division of the Supreme Court of New York, Third Department
May 1, 1967
28 A.D.2d 574 (N.Y. App. Div. 1967)
Case details for

Desroches v. Vartigan

Case Details

Full title:JOHN DESROCHES, Appellant, v. LOTTIE VARTIGAN et al., Respondents

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: May 1, 1967

Citations

28 A.D.2d 574 (N.Y. App. Div. 1967)