Summary
upholding a $100,000 future medical expense award for knee injury that previously had required three arthroscopic surgeries and will require painkillers, anti-inflammatory medication and a new $1,200 knee brace each year for remainder of the plaintiffs 50-year life expectancy, as well as potentially requiring two $20,000 knee replacements
Summary of this case from Marcoux v. Farm Service Supplies, Inc.Opinion
1177
May 20, 2003.
Judgment, Supreme Court, New York County (Emily Goodman, J. and a jury), entered April 9, 2002, awarding plaintiff, inter alia, $100,000 for future medical expenses and $348,000 for future pain and suffering, before structuring, unanimously affirmed, without costs.
Jay L.T. Breakstone, for plaintiff-respondent.
Kathleen D. Foley, for defendant-appellant.
Before: Nardelli, J.P., Saxe, Sullivan, Wallach, Gonzalez, JJ.
The record does not support defendant's claim that the trial court was biased. Defendant's request for a comparative fault charge was properly denied for lack of evidence that plaintiff was negligent when he knelt down alongside a bed in defendant's motel and struck his knee on a metal bar hidden beneath the bedspread cover (see Perales v. City of New York, 274 A.D.2d 349). Furthermore, a subsequent injury charge (PJI3d 2:306 [2003]) was properly given where, based on a vague reference to a subsequent "accident" in plaintiff's physical therapy records, defendant argued on summation that plaintiff was seeking to recover for a second, unrelated injury. The awards for future medical expenses and future pain and suffering do not deviate materially from what is reasonable compensation for a knee injury that has required three arthroscopic surgeries to treat torn ligaments and cartilage damage, will require prescription pain killers, anti-inflammatory medication and a new unloader knee brace each year for the rest of plaintiff's 50-year life expectancy at a per-brace cost of $1200, and will likely require at least two knee replacements and associated physical therapy at a cost of $20,000 each ( cf. Calzado v. New York City Tr. Auth., 304 A.D.2d 385, 2003 N.Y. App. Div LEXIS 3872; Garcia v. Queens Surface Corp., 271 A.D.2d 277). We have considered defendant's other arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.