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Dorothy Mcgurk v. Louis R. Buttermark and Sons

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


May 11, 2012

DOROTHY MCGURK,
APPELLANT,
AND BRIAN MCGURK,
PLAINTIFF,
v.
LOUIS R. BUTTERMARK AND SONS, INC. AND KEVIN RABOLD,
RESPONDENTS.

McGurk v Louis R. Buttermark & Sons, Inc.

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 11, 2012

PRESENT: PESCE, P.J., WESTON and ALIOTTA, JJ

Appeal, on the ground of inadequacy, from a judgment of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered October 24, 2006. The judgment, entered upon a directed verdict on the issue of liability and a jury verdict on the issue of damages, awarded plaintiff Dorothy McGurk the principal sum of only $65,000 for past pain and suffering and no damages for future pain and suffering.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial limited to the issue of Dorothy McGurk's damages for past pain and suffering and future pain and suffering unless, within 30 days after service upon defendants of a copy of this decision and order, defendants shall serve and file in the office of the Clerk of the Civil Court, Richmond County, a written stipulation consenting to increase the verdict as to Dorothy McGurk's damages for her past pain and suffering from the principal sum of $65,000 to the principal sum of $400,000, and as to her damages for future pain and suffering from the principal sum of $0 to the principal sum of $200,000, and to the entry of an amended judgment accordingly; in the event defendants so stipulate, then the judgment, as so increased and amended, is affirmed, without costs.

This is an action to recover for, among other things, personal injuries sustained by Dorothy McGurk (plaintiff), who was 33 at the time of an automobile accident in which the vehicle that plaintiff was in was struck from behind while stopped at a red light. The evidence adduced at trial established that plaintiff sustained bulging and herniated discs in her spine and that she suffered pain for seven years after the accident, which led to her having spinal fusion surgery with the placement of rods, 12 to 14 inches long, and screws along her spine, bone grafting and a bone growth stimulator to enhance recovery. In addition, plaintiff testified that, after surgery, she continued to experience pain, and her physicians testified that her pain will increase over time due to her injuries, which were causally related to the accident. Furthermore, plaintiff testified that she cannot perform many of her activities of daily living without pain. The jury awarded plaintiff damages for past pain and suffering in the principal sum of $65,000 and no damages for future pain and suffering. Plaintiff appeals from the judgment on the ground of inadequacy.

Upon consideration of the nature and extent of the injuries sustained by plaintiff as a result of the automobile accident, and taking into account similar cases (see Van Nostrand v Froehlich, 44 AD3d 54 [2007]; Lewis v Port Auth. of NY & N.J., 8 AD3d 205 [2004]; Valentin v City of New York, 293 AD2d 313 [2002]), we find that the award of $65,000 for past pain and suffering deviated materially from what would be reasonable compensation (see CPLR 5501 [c]; Graves v New York City Tr. Auth., 81 AD3d 589 [2011]; Kihl v Pfeffer, 47 AD3d 154 [2007]). Furthermore, the jury's award for future pain and suffering also deviated materially from what would be reasonable compensation under the circumstances (see CPLR 5501 [c]; Conlon v Foley, 73 AD3d 836 [2010]).

Pesce, P.J., Weston and Aliotta, JJ., concur.

Decision Date: May 11, 2012

20120511

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