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Orellano v. 29 E. 37th St. Realty Corp.

Appellate Division of the Supreme Court of New York, First Department
Feb 24, 2004
4 A.D.3d 247 (N.Y. App. Div. 2004)

Summary

holding awards of $2.5 million and $3 million for past and future pain and suffering, respectively, were excessive and that "for a comminuted fracture of the tibia and fibula that required several surgical procedures during a two-month hospital stay and extensive physical therapy thereafter, and resulted in partial permanent disability to a 47-year-old man, the sum of $375,000 for each of past and future pain and suffering is a more appropriate award"

Summary of this case from Sandoval v. Baker Hughes Oilfield

Opinion

2661.

Decided February 24, 2004.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered December 2, 2002, which, after a jury trial resulting in a verdict awarding plaintiff laborer $2.5 million and $3 million for past and future pain and suffering, respectively, $500,000 for each of past and future lost earnings, and $0 for medical expenses, inter alia, granted motions by defendants and third-party defendant to set aside the verdict to the extent of directing a new trial on the issue of damages for past and future pain and suffering unless plaintiff stipulated to accept $300,000 for each of past and future pain and suffering, and vacating the awards for past and future lost earnings and dismissing the claims therefor as a matter of law, unanimously modified, on the law and the facts, to increase the amount to which plaintiff must agree in order to avoid a new trial on damages to $375,000 for each of past and future pain and suffering, and otherwise affirmed, without costs.

Ephrem Wertenteil, for Plaintiff-Appellant.

Arnold Stream, for Defendants/Third-Party Plaintiffs-Respondents.

Thomas Torto, for Third-Party Defendant-Respondent.

Before: Nardelli, J.P., Sullivan, Rosenberger, Lerner and Gonzalez, JJ.


We agree with the trial court that the awards for past and future pain and suffering were excessive. In our view, however, for a comminuted fracture of the tibia and fibula that required several surgical procedures during a two-month hospital stay and extensive physical therapy thereafter, and resulted in a partial permanent disability to a 47-year-old man, the sum of $375,000 for each of past and future pain and suffering is a more appropriate award ( see Brownell v. City of New York, 277 A.D.2d 31, lv denied 96 N.Y.2d 712). Plaintiff's testimony as to his past earnings was unsubstantiated by tax returns, W-2 forms or other relevant documents, and thus insufficient as a matter of law to show any loss of earnings ( see Martinez v. Royal-Pak Sys., 300 A.D.2d 198). We have considered the parties' other arguments for affirmative relief and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

Orellano v. 29 E. 37th St. Realty Corp.

Appellate Division of the Supreme Court of New York, First Department
Feb 24, 2004
4 A.D.3d 247 (N.Y. App. Div. 2004)

holding awards of $2.5 million and $3 million for past and future pain and suffering, respectively, were excessive and that "for a comminuted fracture of the tibia and fibula that required several surgical procedures during a two-month hospital stay and extensive physical therapy thereafter, and resulted in partial permanent disability to a 47-year-old man, the sum of $375,000 for each of past and future pain and suffering is a more appropriate award"

Summary of this case from Sandoval v. Baker Hughes Oilfield

In Orellano v. 29 E. 37th St. Realty Corp., 772 N.Y.S.2d 659 (1st Dep't 2004), the jury awarded the plaintiff $2,500,000 for past non-economic damages, which were reduced to $500,000 by the trial court; the appellate court reduced the award further to $375,000.

Summary of this case from Tookes v. Port Authority of New York New Jersey

In Orellano v. 29 E. 37th St. Realty Corp., 772 N.Y.S.2d 659 (1st Dep't 2004), the jury awarded the plaintiff $2,500,000 for past non-economic damages, which were reduced to $500,000 by the trial court; the appellate court reduced the award further to $375,000.

Summary of this case from Tookes v. Port Auth. of N.Y. & New Jersey

In Orellano v. 29 East 37th Street Realty Corp., 772 N.Y.S.2d 659 (1st Dept. 2004), damages awarded by jury of $2.5 million for past pain and suffering and $3 million for future pain and suffering, was excessive, and would be reduced to $375,000 for each of past and future pain and suffering; plaintiff suffered comminuted fracture of the tibia and fibula that required several surgeries during a two-month hospital stay and resulted in partial permanent disability to the 47-year old plaintiff.

Summary of this case from Muniz v. Chimienti Realty Assocs., Inc.
Case details for

Orellano v. 29 E. 37th St. Realty Corp.

Case Details

Full title:GUILLERMO ORELLANO, Plaintiff-Appellant, v. 29 EAST 37TH STREET REALTY…

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

Date published: Feb 24, 2004

Citations

4 A.D.3d 247 (N.Y. App. Div. 2004)
772 N.Y.S.2d 659

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