| Ciuffo v Mowery Constr., Inc. |
| 2013 NY Slip Op 04398 [107 AD3d 1195] |
| June 13, 2013 |
| Appellate Division, Third Department |
| James Ciuffo, Appellant, v Mowery Construction, Inc.,Respondent. |
—[*1] Bailey, Kelleher & Johnson, PC, Albany (Thomas J. Johnson of counsel), forrespondent.
Garry, J. Appeal from that part of an order of the Supreme Court (McGrath, J.),entered November 28, 2011 in Rensselaer County, which partially denied plaintiff'smotion to partially set aside a verdict on the issue of damages.
In March 2005, plaintiff suffered a ruptured Achilles tendon and other injuries to hisleft foot and ankle when scaffolding collapsed beneath him while he was working fordefendant as a subcontractor on a construction project. Following surgery to repair theruptured tendon, plaintiff returned to his construction job for approximately one year andthen began working as a golf professional, initially in sales and later as an instructor. InJuly 2006, plaintiff visited the surgeon who had performed the tendon surgery withcomplaints of severe pain and ankle instability. The surgeon diagnosed moderate tosevere Achilles tendinosis—a thickening of the tendon resulting from abnormalscar tissue—as well as an attenuated anterior talofibular ligament, and referredplaintiff to David Dixon, an orthopedic surgeon with a subspecialty in foot and anklesurgery. Dixon determined that, in addition to these conditions, plaintiff also sufferedfrom an injured tarsal coalition in his foot.[FN1]He performed surgery to remove the coalition and [*2]reconstruct the attenuated ligament, and he informedplaintiff that another surgical procedure involving the transfer of a tendon from his footmight eventually be required to correct the Achilles tendinosis. However, he adviseddeferring the tendon transfer surgery to allow time for the tendon to potentially heal onits own. In a follow-up visit three months later, plaintiff indicated that he was satisfiedwith the results of the second surgery. Dixon cleared him to return to work as a golfprofessional and discharged him from his care.
In September 2010, plaintiff returned to Dixon with complaints of pain. Dixondetermined that this pain was caused by Achilles tendinosis and by scar tissue inplaintiff's ankle, and he advised plaintiff of treatment options, including the previouslydescribed tendon transfer surgery, arthroscopic surgery to remove the ankle scar tissueand nonsurgical measures. Plaintiff elected to defer surgery and pursue a conservativecourse of treatment, including orthotics and the potential use of an ankle injection.
Plaintiff commenced this personal injury action alleging violations of Labor Law§§ 200, 240 and 241 (6), and Supreme Court granted partial summaryjudgment to plaintiff on the issue of defendant's liability pursuant to Labor Law §240. Following a trial on the issue of damages, the jury awarded plaintiff damages forpast lost wages and past and future medical expenses as well as $18,000 for past pain andsuffering and $35,000 for future pain and suffering over a 35-year period. Plaintiffmoved pursuant to CPLR 5501 (c) to partially overturn the verdict on the basis that theawards for pain and suffering were against the weight of the evidence. In a thoroughdecision, Supreme Court partially granted this motion, declining to disturb the award forfuture pain and suffering but ordering a new trial on the issue of past pain and sufferingunless the parties stipulated to increase that award to $50,000. As limited by his brief,plaintiff appeals from this order insofar as it did not amend the future pain and sufferingaward.
The amount of a damage award for personal injuries is a question of fact for the jury,and "may be set aside only when it deviates materially from what would be reasonablecompensation" (Vogel vCichy, 53 AD3d 877, 878 [2008]; see CPLR 5501 [c]; Valentine vLopez, 283 AD2d 739, 743 [2001]). As the amount of an award for pain andsuffering is a subjective determination that cannot be precisely quantified, whether thereis a material deviation is determined by examining comparable cases (see Nolan v Union Coll. Trust ofSchenectady, N.Y., 51 AD3d 1253, 1256 [2008], lv denied 11 NY3d705 [2008]; Acton v Nalley,38 AD3d 973, 976 [2007]). This analysis requires consideration of factors such asthe nature and extent of the injuries, the degree of past, present and future pain and thepermanency of the injury (seeGarrison v Lapine, 72 AD3d 1441, 1443 [2010]).
Plaintiff contends that the relatively modest amount of the award for future pain andsuffering indicates that the jury improperly disregarded Dixon's medical testimony,which was the only expert evidence presented at trial (see Baker v Shepard, 276AD2d 873, 875 [2000]; Prescott v LeBlanc, 247 AD2d 802, 803 [1998]). Wedisagree. In addition to finding that plaintiff was entitled to damages for future pain andsuffering, the jury also awarded damages for future medical expenses in the approximateamount of Dixon's estimate of the cost of tendon transfer surgery. It thus appears that thejury accepted Dixon's medical opinion that plaintiff's pain would not resolve on its ownand that the recommended tendon transfer surgery would [*3]eventually be necessary for this reason. Notably, Dixon didnot testify that plaintiff's condition would grow progressively more painful if he did notundergo the surgery or that he would continue to experience significant pain if he didchoose to do so; on the contrary, he described the tendon transfer surgery as "oftentimesover 90 percent successful" in addressing tendinosis pain such as that suffered byplaintiff. Based on this medical testimony, the jury could reasonably have determinedthat most or all of plaintiff's future discomfort would be alleviated by the surgery (seeBritvan v Plaza at Latham, 266 AD2d 799, 800-801 [1999]).
Further, the jury was not required to credit plaintiff's description of the severity of hispain (see Vogel v Cichy, 53 AD3d at 880) and could reasonably have found thathis claims were inconsistent with his relatively high level of physical activity, failure toseek medical attention after 2007, other than a single visit to Dixon in 2010, andrejection of the surgical options offered by Dixon on that occasion.[FN2]Dixon testified that he would not expect a person suffering Achilles tendinosis pain atthe level reported by plaintiff to be able to play golf effectively. However, plaintifftestified that, although his injuries prevented him from regaining his preaccident highlevel of competitive golfing skill, he returned to playing recreational golf in 2006 andwas playing two or three times monthly by 2007. Thereafter, he reduced the frequency ofhis golf games, but explained that he did so because of family demands on his time ratherthan pain. He acknowledged that he passed challenging golf ability tests in 2006 and2009. Moreover, after June 2006, he worked as a golf professional, an athleticallydemanding endeavor that required long days of physical activity. By the time of trial, hehad 700 students and was earning more than he had in construction. Plaintiff testifiedthat he experienced burning pain in the area of the tendon rupture on a daily basisthroughout this period, growing worse during physical activity or while playing golf, aswell as occasional "sharp shooting pain" and episodes of limping. However, he alsotestified that he used over-the-counter medications or no medications at all to manage thediscomfort, and that he sought no medical assistance for this pain during the three yearsfollowing the second surgery, until an episode of unusually intense pain caused him toreturn to Dixon for the single visit in 2010.
"Deference is accorded both to a jury's assessment of personal injury damages and tothe trial court's decision on a motion to set aside the jury's verdict" (Felitti v Daughriety, 12 AD3d909, 910 [2004] [citations omitted]). Upon our review of awards of damages forfuture pain and suffering in comparable cases involving injuries to the foot orankle,[FN3]"we are not persuaded that the record evidence preponderates so greatly in [plaintiff's]favor that the jury could not have reached its conclusion on any fair interpretation of theevidence" (Starr v Cambridge Green Homeowners Assn., 300 AD2d 779, 782[2002]; see McNeil v MCST Preferred Transp. Co., 301 AD2d 579, 579-580[2003] [$40,000 award for future pain and suffering after ankle injury reduced to$15,000 where the plaintiff suffered occasional pain, could not participate in certain[*4]sports and had returned to work]; Britvan v Plazaat Latham, 266 AD2d at 800-801 [$5,000 for future pain and suffering wheresurgery was expected to resolve foot pain]; Lepore v City of New York, 258AD2d 288, 288 [1999] [$10,000 for future pain and suffering following trimalleolarankle fracture]; Seargent v Berben, 235 AD2d 1024, 1026 [1997] [$16,000 forfuture pain and suffering following ankle fracture where the plaintiff was able to workand managed pain with Motrin]; see also Petrilli v Federated Dept. Stores, Inc., 40 AD3d1339, 1343-1344 [2007] [$100,000 is reasonable compensation for future pain andsuffering resulting from injured ankle tendon as well as injuries to arm, wrist, back, neckand shoulder]; Sherry v NorthColonie Cent. School Dist., 39 AD3d 986, 988 [2007] [jury awarded $50,000for future pain and suffering following ankle fracture with consequent bursitis andpost-traumatic arthritis]; Mihalko v Regnaiere, 36 AD3d 983, 984 [2007] [trialcourt increased award to $50,000 for future pain and suffering following ankle injury]).
Stein, J.P., Spain and Egan Jr., JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote 1: Dixon testified that thetarsal coalition was an abnormal growth of bone, cartilage and fibrous tissue that hadbeen present since birth but did not become symptomatic and painful until after it wasinjured in the construction accident.
Footnote 2: Plaintiff testified that hechose to defer surgery because of his work and family obligations.
Footnote 3: There is scant appellatecase law involving the precise injury plaintiff suffered, a ruptured Achilles tendon. Onerecent case from the Second Department was limited to past pain and suffering, with anaward of $450,000, and contained no detail regarding these damages (Kouho v Trump Vil. Section 4,Inc., 93 AD3d 761 [2012]).