| Bello v New York City Tr. Auth. |
| 2008 NY Slip Op 03695 [50 AD3d 511] |
| April 24, 2008 |
| Appellate Division, First Department |
| Vidal A. Bello, an Infant, by His Mother and Natural Guardian, etal., Respondents, v New York City Transit Authority et al.,Appellants. |
—[*1] Ephrem J. Wertenteil, New York, for respondents.
Judgment, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered on or aboutNovember 15, 2006, which, after a jury trial, to the extent appealed from as limited by the briefs,awarded plaintiff Vidal Bello $750,000 for past pain and suffering, and $750,000 for future painand suffering, unanimously modified, on the law, to the extent of vacating the award of interestand remanding the matter to recompute interest at the rate of 3% per annum, and otherwiseaffirmed, without costs. The Clerk is directed to enter an amended judgment accordingly.
Viewing the evidence in the light most favorable to plaintiff (see Hersh v New York CityTr. Auth., 297 AD2d 556 [2002]), it cannot be said that there exists no valid line ofreasoning or permissible inferences which could possibly lead a rational juror to conclude thatthe bus driver was put on notice of the dangerous possibility that one of the rowdy children onthe sidewalk, who were pushing each other, would push another person into the bus (seegenerally Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]; Baker v Turner Constr.Co., 200 AD2d 525 [1994], lv denied 83 NY2d 755 [1994]), and that the drivershould have pulled in further from the curb.
Contrary to defendants' contention, the trial court's instruction that "[a] driver is charged withthe duty to see that which under the facts and circumstances he should have seen by the properuse of his senses" was appropriate (PJI 2:77.1; see Conradi v New York City Tr. Auth.,249 AD2d 436 [1998]; see alsoDomanova v State of New York, 41 AD3d 633, 634 [2007]).
The awards for past and future pain and suffering do not deviate materially from reasonablecompensation. The record shows that at the time of the accident, plaintiff was seven years old,and suffered an open fracture to the right tibia and fibula, a degloving injury to the right leg, andthe tibia sustained a spiral fracture. Pins were placed in plaintiff's leg, and he has undergoneseven additional procedures, including grafting to cover exposed tissue. His leg has significantscarring and deformity, and X rays show the fibula to be curved. Plaintiff walks with a limp thatwill get progressively worse as he grows, and he will subsequently require a revision of the graft,and work to his ankle (see Lopez v Gomez, 305 AD2d 292 [2003]; Kraus v CalicheRealty Estates, 302 AD2d 214 [2003], lv denied 100 NY2d 503 [2003];Silfverschiold v Hut Cab Corp., 266 [*2]AD2d 147[1999]).
To the extent the judgment included interest at the rate of 6% instead of 3%, the mattershould be remanded as indicated (see Public Authorities Law § 1212 [6]; §1203-a [6]; Klos v New York City Tr. Auth., 240 AD2d 635, 638 [1997], lvdismissed 91 NY2d 846 [1997]). Concur—Lippman, P.J., Friedman, Sweeny andMoskowitz, JJ.