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Park v. City of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


February 2, 2010

KERWIN PARK, PLAINTIFF-APPELLANT-RESPONDENT,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS,
EAST 8TH STREET EQUITIES, ET AL., DEFENDANTS-RESPONDENTS-APPELLANTS.

Order, Supreme Court, New York County (Nicholas Figueroa, J.), entered October 29, 2009, which, in an action for personal injuries sustained by a worker on a construction site, granted defendants-respondents' motion to set aside the jury's awards of $1,500,000 for past pain and suffering over 7.5 years and $800,000 for future pain and suffering over 32.7 years to the extent of directing a new trial on the issue of past pain and suffering unless plaintiff, within 20 days of service of the order with notice of entry, stipulated to a reduction of the award for past pain and suffering to $600,000, unanimously modified, on the facts, to also direct a new trial on the issue of future pain and suffering unless plaintiff, within 20 days of service of this order with notice of entry, stipulates to a reduction of the award for future pain and suffering to $400,000, and otherwise affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Friedman, J.P., Catterson, Acosta, DeGrasse, Abdus-Salaam, JJ.

122075/01

We affirm the trial court's reduction of the jury's award for past pain and suffering, and direct a reduction of the jury's award for future pain and suffering to the extent indicated, based on cases involving a comminuted fracture to the elbow/arm, multiple surgeries, potential additional surgery, and permanent pain and limitation of motion (see Baez v New York City Tr. Auth., 15 AD3d 309 [2005], citing Martinez v Gouverneur Gardens Hous. Corp., 184 AD2d 264, 267 [1992], lv denied 80 NY2d 759 [1992], citing Roshwalb v Regency Mar. Corp., 182 AD2d 401 [1992], lv denied 80 NY2d 756 [1992]; see also Fudali v New York City Tr. Auth., 6 Misc 3d 1020[A], 2005 NY Slip Op 50136[U], *3 [Jan 7, 2005]). The fracture to plaintiff's nondominant wrist, which did not involve surgery and appears to have resolved by the time of trial, adds little value to the case, although it does warrant an award at the top of the range indicated by the cases cited above (cf. Claudio v City of New York, 280 AD2d 403, 403-404 [2001]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100202

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