| Adames v Awad |
| 2008 NY Slip Op 00436 [47 AD3d 737] |
| January 22, 2008 |
| Appellate Division, Second Department |
| Jose DeJesus Adames, Appellant, v Kerollous Awad et al.,Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel),for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment ofthe Supreme Court, Richmond County (Maltese, J.), dated May 8, 2006, which, upon a juryverdict on the issue of liability finding him 50% at fault and the defendants 50% at fault in thehappening of a motor vehicle accident, and finding that he sustained damages in the sum of only$7,500 for past pain and suffering and no damages for future pain and suffering and futuremedical costs, is in his favor and against the defendants in the principal sum of only $3,750 (50%of $7,500).
Ordered that the judgment is modified, on the facts and in the exercise of discretion, bydeleting the provisions thereof awarding damages of only $7,500 for past pain and suffering andno damages for future pain and suffering; as so modified, the judgment is affirmed, with costs tothe plaintiff, and a new trial is granted on the issue of those damages unless, within 30 days afterservice upon the defendants of a copy of this decision and order, the defendants shall serve andfile in the office of the Clerk of the Supreme Court, Richmond County, a written stipulationconsenting to increase the verdict as to damages for past pain and suffering from the principalsum of $7,500 to the principal sum of $150,000, and for future pain and suffering from theprincipal sum of $0 to the principal sum of $150,000, and the net award of damages for past andfuture pain and suffering from the principal sum of $3,750 (50% of $7,500) to the principal sumof $150,000 (50% of $300,000); in the event the defendants so stipulate, then the judgment, as soincreased and amended, is affirmed, without costs or disbursements.
The plaintiff, who was 58 years old at the time of the subject motor vehicle accident, had[*2]done hard physical labor all of his adult life. As a result of theaccident, the plaintiff suffered, inter alia, a "[h]igh grade LCL sprain," a radial tear of theposterior horn of the medial meniscus, torn cartilage, torn meniscus, and a posterior tear of thelateral horn of the lateral meniscus. When the plaintiff's knee injuries did not respond to physicaltherapy and home exercises, he underwent arthroscopic surgery. After two months of therapy andhome exercise post-arthroscopic surgery, the plaintiff's symptoms were responding onlyminimally. The plaintiff then underwent a total left knee replacement. The uncontradictedtestimony of the plaintiff's orthopedist, as to the post-operative and future condition of theprosthetic knee, was that the knee would never have as great a range of motion or be as stable asa natural knee; that the plaintiff had a significant limitation in the range of motion with theprosthetic knee in comparison with a normal range of motion; that it was likely the plaintiffwould need a future replacement of the knee; and that, to a reasonable degree of medicalcertainty, the plaintiff's knee injury was permanent.
The jury returned a verdict finding the plaintiff sustained a significant limitation of use of abody function or system, but did not sustain a permanent consequential limitation, and findingthe plaintiff 50% at fault. On damages, the jury determined that the plaintiff had sustaineddamages in the sum of $7,500 for past pain and suffering and $0 for future pain and suffering.
The damages awarded for past pain and suffering are inadequate to the extent indicated, asthey deviate materially from what would be reasonable compensation (see CPLR 5501[c]; Ciano v Sauve, 42 AD3d556 [2007]; Conley v City of NewYork, 40 AD3d 1024 [2007]; Paruolo v Yormak, 37 AD3d 794 [2007]; Staley v Savoury,302 AD2d 446 [2003]).
The jury's failure to award any damages for future pain and suffering was not based on a fairinterpretation of the evidence (see Lolik v Big V Supermarkets, 86 NY2d 744 [1995]; Conley v City of New York, 40 AD3d1024 [2007]; Fryer v MaimonidesMed. Ctr., 31 AD3d 604 [2006]). Accordingly, the jury's failure to award any damagesfor future pain and suffering is inadequate to the extent indicated herein (see Ciano v Sauve, 42 AD3d 556[2007]; Paruolo v Yormak, 37AD3d 794 [2007]; Lamb v Babies 'R' Us, 302 AD2d 368 [2003]; Claudio v Cityof New York, 280 AD2d 403 [2001]). Crane, J.P., Florio, Angiolillo and Carni, JJ., concur.