| Watanabe v Sherpa |
| 2007 NY Slip Op 07924 [44 AD3d 519] |
| October 23, 2007 |
| Appellate Division, First Department |
| Shiro Watanabe, Appellant, v Mingmar Sherpa et al.,Respondents, et al., Defendants. |
—[*1] Marjorie E. Bornes, New York, for Mingmar Sherpa and Nicolae E. Klein, respondents. Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Michael I. Josephs of counsel),for Mohamad Rabbani and Sobell Cab Corp., respondents.
Order, Supreme Court, New York County (Donna M. Mills, J.), entered May 17, 2006,which, to the extent appealed from, denied plaintiff's motion for a new trial asserting the juryverdict was against the weight of the evidence, unanimously modified, on the facts, a new trialdirected on damages for future pain and suffering only, and otherwise affirmed, without costs,unless defendant Sherpa stipulates to increase said award, before apportionment, to $300,000.
Plaintiff was standing in a Manhattan street on Third Avenue near the intersection of 55thStreet at about 2:30 in the morning, talking to defendant Rabbani, a taxicab driver, when he wasstruck by another taxicab driven by defendant Sherpa. The record indicates that plaintiff had beendrinking prior to the incident.
Plaintiff was able to testify about his state of mind and the nature of the accident, and wasnot prejudiced by the court's bifurcation of the trial (see Fetterman v Evans, 204 AD2d888, 890 [1994]). His injuries were neither probative of how the incident occurred nor sointertwined with the damages as to require a unified trial (see Berthoumieux v We TryHarder, 170 AD2d 248 [1991]).
The jury's verdict apportioning liability 80% to plaintiff and 20% to Sherpa was not againstthe weight of the evidence (CPLR 4404 [a]), given that plaintiff admitted he had been drinkingand was standing in the street without looking at oncoming traffic; Sherpa testified that plaintiffsuddenly moved into his lane of traffic just before impact (see Rakich v Lawes, 186AD2d 932 [1992]).
The award of $150,000 for past pain and suffering over a two-year period was reasonable,given that plaintiff, who sustained a fractured tibia, had to have only one surgery requiring ahospital stay of only six days (compareOrellano v 29 E. 37th St. Realty Corp., 4 AD3d 247[*2][2004], lv denied 4 NY3d 702 [2004], with Toribio vJ.D. Posillico, Inc., 297 AD2d 216 [2002]). However, the award of $100,000 for future painand suffering for a 41.7-year life expectancy deviated materially from what is reasonablecompensation under the circumstances, and should be increased as indicated, given theuncontroverted testimony that plaintiff's injuries are permanent and he suffers ongoing pain, thathe is likely to develop degenerative arthritis that could possibly require knee replacementsurgery, that a future operation to remove the rod and screws is recommended, and that his injuryresulted in atrophy of the left thigh, laxity in the ligaments, and limitation of his physicalactivities (see Vasquez v City of New York, 298 AD2d 187 [2002]).
We have considered Sherpa's remaining arguments and find them without merit.Concur—Lippman, P.J., Andrias, Williams, Buckley and Malone, JJ.