| Lowenstein v Normandy Group, LLC |
| 2008 NY Slip Op 04439 [51 AD3d 517] |
| May 15, 2008 |
| Appellate Division, First Department |
| Susan Lowenstein, Respondent, v The Normandy Group,LLC, Doing Business as Il Pomodoro Restaurant, et al., Appellants. |
—[*1] Godosky & Gentile, P.C., New York (Brian J. Isaac of counsel), for respondent.
Judgment, Supreme Court, New York County (Judith J. Gische, J., and a jury), entered May10, 2007, awarding plaintiff, inter alia, $300,000 for past pain and suffering and $1,500,000 forfuture pain and suffering, unanimously modified, on the facts, to vacate the award for future painand suffering and to direct a new trial solely on damages for future pain and suffering, andotherwise affirmed, without costs, unless plaintiff, within 30 days of service of a copy of thisorder, stipulates to a reduction of the award for future pain and suffering to $850,000, and toentry of an amended judgment in accordance therewith.
Defendant's argument that the verdict is inconsistent in finding that plaintiff was negligentbut that her negligence was not a proximate cause of her injuries was not raised before the jurywas discharged and is unpreserved (seeMartinez v New York City Tr. Auth., 41 AD3d 174, 175 [2007]). In any event, theverdict can be reconciled with a reasonable view of the evidence (see id.). Plaintiffsustained injuries when she fell through an open sidewalk door into a cellar while exiting arestaurant owned and operated by defendant-appellant. The jury could have found that plaintiff'snegligence in failing to observe the open vault on a dark, rainy night, after she took two steps tothe left out of a recessed doorway, in which direction she was required to walk becausedefendant's employee, who was holding the door halfway open, blocked her path, was supersededby defendant's negligence in violating its own rules regarding the operation of the vault (thatwhenever someone went down to the basement another person had to stand over the opensidewalk covering) and in failing to warn plaintiff of the open covering (see Kelly v City of New York, 6 AD3d188, 189 [2004]; Caldas v City of New York, 284 AD2d 192, 192-193 [2001]).
Defendant's challenge to three jury charges is partially unpreserved (see CPLR4110-b) and unavailing. Defendant's former porter, as both a former employee and a participantin the accident who, having left his post guarding the open vault, had a motive to shield himselffrom blame, was properly charged as an interested witness (see Coleman v New York CityTr. Auth., 37 NY2d 137, 141-142 [1975]; Kalam v K-Metal Fabrications, 286 AD2d603, 604 [2001]; Hill v Arnold, 226 AD2d 232, 233[*2][1996]); he was also interested in testifying consistently with thedeposition testimony he gave while still defendant's employee. We reject defendant's argumentthat Administrative Code of the City of NY § 19-119, regulating the opening of vaults"under any street," applies only to vaults under a street, not cellar vaults under a sidewalk, andwas therefore erroneously charged (cf. Administrative Code § 19-101 [c]; §1-112 [13] [defining "street" to include any "sidewalk"]; Fleming v Fifth Ave. CoachLines, 23 AD2d 726 [1965], lv denied 16 NY2d 485 [1965]). The trial court alsoproperly charged that a pedestrian may assume that a sidewalk is kept in proper condition (seeSparks v City of New York, 31 AD2d 660 [1968]).
Plaintiff sustained a bi- or tri-malleolar ankle fracture treated with open reduction andinternal fixation, and a three-part shoulder fracture treated with immobilization. As a result,plaintiff was in the hospital for 12 days, received inpatient care at a rehabilitation facility for fourweeks, had to reside with a relative for approximately three months before returning home, andwas unable to return to work for 18 months. Plaintiff continues to suffer constant sharp anklepain, reduced range of motion, inability to return to recreational activities, and has an increasedrisk of arthritis, but no future surgery is indicated. The award for past pain and suffering does notdeviate from what would be reasonable compensation. The award for future pain and sufferingover 28 years deviates from what would be reasonable compensation to the extent indicated (compare Ruiz v New York City Tr.Auth., 44 AD3d 331 [2007]; Singh v Gladys Towncars Inc., 42 AD3d 313 [2007]; Bingham v New York City Tr. Auth.,25 AD3d 433 [2006], affd on other grounds 8 NY3d 176 [2007]; Uriondo v Timberline Camplands, Inc.,19 AD3d 282 [2005], lv denied 6 NY3d 704 [2006]; Murakami v Machinist, 3 AD3d336 [2004]).
We have considered defendant's remaining arguments and find them unavailing.Concur—Mazzarelli, J.P., Friedman, Buckley, Sweeny and Renwick, JJ.