| Serrano v 432 Park S. Realty Co., LLC |
| 2009 NY Slip Op 01168 [59 AD3d 242] |
| February 17, 2009 |
| Appellate Division, First Department |
| German Serrano, Respondent, v 432 Park South RealtyCo., LLC, Appellant. (And a Third-Party Action.) 432 Park South Realty Co., LLC, SecondThird-Party Plaintiff-Appellant, v Fortune Interior Dismantling Corp., Second Third-PartyDefendant-Respondent. (And a Third Third-Party Action.) |
—[*1] Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for German Serrano,respondent. McCusker, Anselmi, Rosen & Carvelli, P.C., New York (John B. McCusker of counsel), forFortune Interior Dismantling Corp., respondent.
Judgment, Supreme Court, New York County (Alice Schlesinger, J.), entered October 22,2007, upon a jury verdict finding that plaintiff did not suffer a "grave injury" within the meaningof Workers' Compensation Law § 11 and awarding him $600,000 for past pain andsuffering, $4,240,000 for future pain and suffering, and $2,302,425 for future medical expenses(including $710,556 for care, $443,405 for rehabilitation, and $150,111 for household services),unanimously modified, on the law and the facts, to reduce the award for future medical expensesby $150,111 and to vacate the award for future pain and suffering and remand for a new trialsolely as to such damages, and otherwise affirmed, without costs, unless plaintiff, within 30 daysof service of a copy of this order, stipulates to reduce the award for future pain and suffering to$2,500,000 and to the entry of an amended judgment in accordance therewith.
The court properly left it to the jury to determine whether plaintiff suffered a grave injury ofhis left hand (Workers' Compensation Law § 11; see Mustafa v Halkin Tool, Ltd.,2004 WL [*2]2011384, *10, 2004 US Dist LEXIS 16128, *30-31[ED NY 2004]). The jury's verdict that plaintiff did not suffer a grave injury within the meaningof Workers' Compensation Law § 11 was not against the weight of the evidence (see Torricelli v Pisacano, 9 AD3d291 [2004], lv denied 3 NY3d 612 [2004]; McDermott v Coffee Beanery, Ltd., 9 AD3d 195, 206-207 [2004]).
The award for past pain and suffering does not deviate materially from what would bereasonable compensation (CPLR 5501 [c]; see Cabezas v City of New York, 303 AD2d307 [2003]). In addition to the wrist fracture addressed in Cabezas, plaintiff suffered aherniated disc, for which he underwent an operation, and developed reflex sympatheticdystrophy and post-traumatic stress disorder associated with major depressive disorder.However, the award for future pain and suffering is excessive (see Cabezas,supra; Hayes v Normandie LLC, 306 AD2d 133 [2003], lv dismissed100 NY2d 640 [2003]; Brown v City of New York, 309 AD2d 778 [2003]; Valentinev Lopez, 283 AD2d 739, 740 n, 744 [2001]).
The rehabilitation (physical therapy) award is supported by plaintiff's testimony that, as ofthe time of trial, he was going to physical therapy twice a month and that he would go morefrequently if he had the money and the testimony of a physician specializing in pain managementthat plaintiff will need physical therapy twice a week for the rest of his life, at a cost ofapproximately $120 per visit.
The award for care is supported by a psychiatrist's testimony that plaintiff will probably needsomeone to care for him for the rest of his life and a life care planner and medical case manager'stestimony that plaintiff will need two hours of assistance per day until age 55 and four hours perday thereafter and that he cannot rely forever on his family. The testimony of an economistestablishes that "care" means the assistance provided by the home attendant mentioned by thelife care planner. However, it cannot be determined from the evidence what the category of"household services" is meant to cover. We therefore vacate the $150,111 award for householdservices (seeMcDougald v Garber, 135 AD2d 80, 96 [1988], mod on other grounds 73 NY2d 246[1989]). Concur—Friedman, J.P., Gonzalez, Buckley and Renwick, JJ.