| Colon v New York Eye Surgery Assoc., P.C. |
| 2010 NY Slip Op 07692 [77 AD3d 597] |
| October 28, 2010 |
| Appellate Division, First Department |
| Mary Colon, Respondent, v New York Eye Surgery Associates,P.C., Appellant. |
—[*1] Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), forrespondent.
Amended order, Supreme Court, Bronx County (Mark Friedlander, J.), entered on or aboutJanuary 20, 2010, which directed a new trial on damages unless the parties agreed to reduce the juryverdict for past pain and suffering from $750,000 to $300,000 and for future pain and suffering from$1.5 million to $650,000, and bringing up for review a prior order, entered December 18, 2009, whichdenied that portion of defendant's post-trial motion to set aside the verdict as to liability and direct entryof judgment in its favor, unanimously affirmed, without costs.
Giving plaintiff every favorable inference that can reasonably be drawn from the facts(Sagorsky v Malyon, 307 NY 584 [1954]), we conclude that the jury's finding was supportedby sufficient evidence and was not against the weight of that evidence. The testimonial and photographicevidence demonstrated that the height differential between the concrete sidewalk and the adjacentgrassy verge constituted a dangerous condition that was not obvious to a pedestrian, and that thedifferential at its greatest point was not trivial (see Trincere v County of Suffolk, 90 NY2d 976[1997]). The jury could have reasonably found, based on the photographs taken days after the accidentand the testimony of defendant's facility manager, that the entire property was inspected daily, givingdefendant constructive notice of the defect.
The court properly permitted plaintiff's expert to testify, based on medical records in evidence andhis examination of plaintiff, that she had "some components" of reflex sympathetic dystrophy that were"more likely than not" causally related to the incident.
The reduced awards for past and future pain and suffering did not grossly deviate from what wouldbe considered reasonable compensation (CPLR 5501 [c]). Concur—Saxe, J.P., Acosta,Freedman and Abdus-Salaam, JJ.