Opinion
December 27, 2000.
Appeal from Order of Supreme Court, Erie County, Michalek, J. — Set Aside Verdict.
PRESENT: HAYES, J. P., HURLBUTT, SCUDDER, KEHOE AND LAWTON, JJ.
Order unanimously reversed on the law without costs, motion denied and verdict reinstated. Memorandum : Supreme Court erred in granting plaintiff's motion to set aside the jury's award of damages as contrary to the weight of the evidence. It cannot be said that the evidence so preponderated in favor of plaintiff that the verdict awarding him $17,500 for past pain and suffering could not have been reached on any fair interpretation of the evidence ( see, Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746; Wesolek v. Tops Mkts., 255 A.D.2d 972). Nor is the award of $5,000 for future pain and suffering over a two-year period contrary to the weight of the evidence. The court determined as a matter of law that plaintiff had sustained a significant disfigurement based on a scar on his forehead that was 3 centimeters long and 5 millimeters wide. Plaintiff's plastic surgeon testified, however, that the scar could be improved with surgery and that, as a result of the surgery, "the scar would be longer, but less noticeable." The jury, having had the opportunity to view the scar, could have determined based upon a fair interpretation of the evidence that with such surgical revision the scar would no longer constitute a significant disfigurement, and thus that plaintiff was not entitled to damages for future pain and suffering beyond the two-year period ( see generally, Petrivelli v Walz , 227 A.D.2d 735, 736).