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Vernon Henry, et al v. New York City Transit Authority

New York Supreme and/or Appellate Courts Appellate Division, First Department


February 7, 2012

VERNON HENRY, ET AL.,
PLAINTIFFS-RESPONDENTS,
v.
NEW YORK CITY TRANSIT AUTHORITY, ET AL.,
DEFENDANTS-APPELLANTS.

Henry v New York City Tr. Auth.

Decided on February 7, 2012

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.

Saxe, J.P., Friedman, Catterson, Freedman, Manzanet-Daniels, JJ.

Judgment, Supreme Court, Bronx County (Lucy Billings, J.), entered on or about August 3, 2010, insofar as appealed from, awarding plaintiff Vernon Henry, after a jury trial on damages, $1,000,000 and $1,500,000, respectively, for past and future pain and suffering, $165,000 and $575,000, respectively, for past and future lost earnings, and, as reduced by the trial court, $36,000 for future medical expenses, unanimously modified, on the law, to reduce the award for future lost earnings to $275,000, and, on the facts, to vacate the award for future pain and suffering and order a new trial solely as to those damages, unless plaintiffs, within 30 days of service of a copy of this order with notice of entry, stipulate to accept a reduced award for future pain and suffering to $500,000 and to entry of an amended judgment in accordance therewith, and otherwise affirmed, without costs.

The award for future lost earnings must be reduced, as indicated above, to conform to the evidence.

The admission of plaintiff's dental testimony as to causation was proper. While the dentist did not render his opinion with "a reasonable degree of medical certainty," causation was established by his testimony, when considered in its entirety, and plaintiff's history of first noticing the loose teeth in the hospital following the accident (see Matott v Ward, 48 NY2d 455, 460 [1979]). The weight to be accorded to conflicting expert testimony was within the province of the jury (see Torricelli v Pisacano, 9 AD3d 291, 293 [2004], lv denied 3 NY3d 612 [2004]).

Plaintiff sustained multiple injuries in a fall from a mechanical scaffold to the ground, including fractures to the left superior and inferior pubic rami, sacrum, ilium, three ribs and left radial neck, and the loss of nine teeth. While these injuries required plaintiff to be hospitalized for five days and plaintiff was unable to return to work for 19 months, he did not require surgery and, aside from his pelvic fractures, which continued to cause pain and make it difficult for plaintiff to walk, plaintiff's injuries had healed well, and plaintiff had returned to his job as an electrician without restriction. Accordingly, we find that, based on a review of cases involving similar injuries, the award for future pain and suffering deviated materially from what would be reasonable compensation and we reduce it accordingly (compare DeVirgilio v Feller Precision Stage Lifts, Inc., 47 AD3d 522 [2008], lv denied 10 NY3d 709 [2008]; Brzozowy v ELRAC, Inc., 39 AD3d 451 [2007]; Purcell v Axelsen, 286 AD2d 379 [2001]; Lind v City of New York, 270 AD2d 315 [2000]).

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

ENTERED: FEBRUARY 7, 2012

CLERK

20120207

© 1992-2012 VersusLaw Inc.



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