Elescano v Eighth-19th Co., LLC
2005 NY Slip Op 03144 [17 AD3d 250]
April 21, 2005
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, June 22, 2005
Ruben Elescano v Eighth-19th Company, LLC
Ruben Elescano, Appellant,
Eighth-19th Company, LLC, Defendant and Third-Party Plaintiff. A & T Construction Corp., Third-Party Defendant-Respondent.
Judgment, Supreme Court, New York County (Nicholas Figueroa, J., and a jury), entered April 5, 2004, in an action by a construction worker for personal injuries, awarding, inter alia, $100,000 for past pain and suffering and, insofar as appealed from, $50,000 for future pain and suffering over 37 years, unanimously modified, on the facts, to vacate the award for future pain and suffering and direct a new trial on that issue only, and otherwise affirmed, without costs, unless third-party defendant-respondent, within 30 days of service of a copy of this order with notice of entry, stipulates to increase the award for future pain and suffering to $200,000, and to the entry of an amended judgment in accordance therewith.
Plaintiff suffered a ruptured rotator cuff that required physical therapy three times a week for about a year, then surgery, then six more months of physical therapy, and then home exercise of 30 to 40 minutes a day continuing through the trial. Plaintiff's treating physician stated that the injury will cause plaintiff permanent and worsening chronic pain; defendant's expert acknowledged that plaintiff has a permanent partial disability with intermittent symptoms that can be painful with extreme motions. Under the circumstances, the award for future pain and [*2]suffering deviates materially from what is reasonable compensation under the circumstances (cf. Murakami v Machinist, 3 AD3d 336 ), and we accordingly modify as above indicated. Concur—Tom, J.P., Mazzarelli, Friedman, Gonzalez and Catterson, JJ.