| Rivera v New York City Tr. Auth. |
| 2012 NY Slip Op 01128 [92 AD3d 516] |
| February 14, 2012 |
| Appellate Division, First Department |
| Lizzette Rivera, Respondent, v New York City TransitAuthority, Appellant, et al., Defendants. |
—[*1] Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac of counsel), forrespondent.
Judgment, Supreme Court, New York County (Paul E. Feinman, J.), entered February 23,2010, inter alia, awarding plaintiff, upon a jury verdict on damages, unapportioned principalamounts of $710,000 for past pain and suffering and $1 million for future pain and suffering for40 years, unanimously modified, on the facts, to vacate the awards for past and future pain andsuffering and order a new trial as to such damages, unless plaintiff, within 30 days of service of acopy of this order with notice of entry, stipulates to a reduction in the unapportioned damages forpast and future pain and suffering to $600,000 and $600,000, respectively, and to entry of anamended judgment in accordance therewith, and otherwise affirmed, without costs.
Defendant's argument that plaintiff's counsel's reference, in summation, to the apportionmentof liability warranted a mistrial is unpreserved (see Lucian v Schwartz, 55 AD3d 687, 689 [2008], lvdenied 12 NY3d 703 [2009]). In any event, the jury is presumed to have understood andfollowed the court's extensive curative instructions (see Martelly v New York City Health &Hosps. Corp., 276 AD2d 373 [2000]).
The trial court's procedure of randomly drawing an alternate juror to substitute for adischarged juror, rather than substituting an alternate juror sequentially according to thedesignation of alternate jurors, was permissible (see CPLR 4106; Xi Yu v New York Univ. Med. Ctr., 4Misc 3d 602 [2004]).
Plaintiff sustained a tri-malleolar ankle fracture, with dislocation, which required threesurgeries and caused tendon and cartilage damage. She continues to have complaints oflimitation and pain in her affected ankle and her orthopedic surgeon testified that she had anincreased risk of arthritis. The awards for past and future pain and suffering deviate materially[*2]from what would be reasonable compensation to the extentindicated (CPLR 5501 [c]; see e.g.Alicea v City of New York, 85 AD3d 585 [2011]; Lowenstein v Normandy Group, LLC, 51 AD3d 517 [2008]).Concur—Tom, J.P., Andrias, Catterson, Richter and Abdus-Salaam, JJ.