Opinion
February 16, 2000
Appeal from Order of Supreme Court, Monroe County, Polito, J. — Set Aside Verdict.
PRESENT: HAYES, J. P., WISNER, PIGOTT, JR., SCUDDER AND LAWTON, JJ.
Order unanimously affirmed without costs.
Memorandum:
Supreme Court properly granted plaintiffs' motion to set aside the jury's aggregate award of damages of $95,000 and granted a new trial on damages only. The record establishes that Kelly Anne Kreutter (plaintiff) sustained a broken back in a motor vehicle accident, requiring spinal fusion and insertion of a bone graft and stainless steel rods and hooks. She also sustained a closed head injury with loss of consciousness, a three-centimeter facial laceration to the bone and a partially collapsed lung. The head laceration and back surgery resulted in permanent scarring. The record further establishes that plaintiff was in extreme pain after the accident and was not able to receive pain medication until six or seven hours later. She continued to be in pain until the spinal fusion surgery was performed four days after the accident. Plaintiff was in a cast with resulting discomfort for approximately five months after the surgery. Evidence was introduced that plaintiff will continue to suffer pain from her back injury and surgery. Under those circumstances, the jury's award of damages deviates materially from what would be reasonable compensation ( see, e.g., Skow v. Jones, Lang Wooton Corp., 240 A.D.2d 194, lv denied 94 N.Y.2d 758 [decided Dec. 21, 1999]; Eschberger v. Consolidated Rail Corp., 174 A.D.2d 983, 985, lv denied 79 N.Y.2d 752, cert denied 503 U.S. 1011).
Because no judgment or order concerning liability has been entered, the remaining contentions of defendants Farley Bruce Goldthorpe and the Estate of Harold E. Young, Jr. are not properly before us ( see, Kuhn v. Kuhn, 129 A.D.2d 967).