| Grinberg v C&L Contr. Corp. |
| 2013 NY Slip Op 04419 [107 AD3d 491] |
| June 13, 2013 |
| Appellate Division, First Department |
| Mark Grinberg, Appellant, v C&L ContractingCorporation, Respondent. |
—[*1] Newman Myers Kreines Gross Harris, P.C., New York (Stephen N. Shapiro ofcounsel), for respondent.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered August29, 2012, which denied plaintiff's motion to set aside the jury verdict awarding him$75,000 and $35,000 for past and future pain and suffering, respectively, as inadequate,unanimously reversed, on the facts, without costs, the motion granted, and the matterremanded for a new trial as to such damages, unless defendant stipulates, within 30 daysof service of a copy of this order with notice of entry, to increase the awards for past andfuture pain and suffering to $500,000 and $450,000, respectively, and to entry ofjudgment in accordance therewith.
As a result of a fall, plaintiff suffered severe injuries to his left leg, including a pilonfracture, which is a "limb threatening injury," crushing the ankle, as well as amulti-fragmented, comminuted fracture to the tibia. Such a fracture injures not only thebone but also the surrounding tissues, including nearby ligaments, tendons, veins,arteries, and nerves. Plaintiff also sustained a spiral fracture to the fibula, near the knee.He underwent a surgery involving open reduction and internal fixation, and a secondsurgery to remove the hardware. Plaintiff's injuries required rehabilitation and haveresulted in permanent arthritis, tendonitis, and the potential need for future procedures.
A "good recovery" from the two surgeries for these severe injuries, and plaintiff'sluck in escaping disabling pain, does not equate to an absence of pain and suffering. Thelast time plaintiff saw his orthopedic surgeon, Dr. Weiner, was in the fall of 2011, about8 to 10 months before trial. He reported that he still experienced pain when walking onuneven surfaces, where his ankle twists, and when he walks or stands for more than 15 or20 minutes. He also testified that he still feels pain in his leg. Moreover, Dr. Weinerstated that plaintiff is manifesting some problems with motion, weakness of tendons withinflammation, and that, if arthritis progresses as he expects it will, plaintiff will needfuture procedures.
Given the severity of plaintiff's injuries and the ongoing problems and expectedfuture limitations, the amounts awarded for past and future pain and suffering areinadequate, deviating [*2]materially from what would bereasonable compensation (seee.g. Rivera v New York City Tr. Auth., 92 AD3d 516 [1st Dept 2012]; Orellano v 29 E. 37th St. RealtyCorp., 4 AD3d 247 [1st Dept 2004], lv denied 4 NY3d 702 [2004]).Concur—Acosta, J.P., Saxe, Moskowitz, Freedman and Manzanet-Daniels, JJ.