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Hammer v. 1111 Avenue K, Inc.

Supreme Court of New York, Second Department

March 19, 2014

Esther Hammer, respondent,
v.
1111 Avenue K, Inc., appellant. Index No. 2155/10

Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Nicholas P. Hurzeler of counsel), for appellant.

Bohrer & Lukeman (Alexander J. Wulwick, New York, N.Y., of counsel), for respondent.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, ROBERT J. MILLER, JOSEPH J. MALTESE, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Battaglia, J.), dated November 9, 2012, which, upon a jury verdict on the issue of damages awarding the plaintiff the principal sums of $130, 000 for past pain and suffering and $140, 000 for future pain and suffering, granted the plaintiff's motion to set aside the verdict as inadequate to the extent of directing a new trial on the issue of damages unless it stipulated to an increase in the award for past pain and suffering from the principal sum of $130, 000 to the principal sum of $200, 000, and an increase in the award for future pain and suffering from the principal sum of $140, 000 to the principal sum of $300, 000.

ORDERED that the order is affirmed, with costs.

On December 18, 2009, the then 25-year-old plaintiff sustained a dislocated trimalleolar fracture of her right ankle as a result of falling on a sidewalk in front of the defendant's premises. She underwent surgery, and had a plate and eight screws inserted to hold the medial malleolus in place, which resulted in a keloid scar. As a result of her injury, the plaintiff experienced pain and stiffness on a daily basis, and had difficulty kneeling and squatting. She could not run or wear dress shoes with heels. She was at risk of developing posttraumatic arthritis of the ankle in the future.

Under the circumstances, the Supreme Court properly determined that the jury's award for past and future pain and suffering deviated materially from what would be reasonable compensation (see CPLR 5501[c]; Williams v New York City Tr. Auth., 95 A.D.3d 1003; Clark v N-H Farms, Inc., 15 A.D.3d 605), and properly directed a new trial on the issue of damages unless the defendant stipulated to an increase of the awards as indicated.

RIVERA, J.P., BALKIN, MILLER and MALTESE, JJ., concur.


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