Rivera v New York City Tr. Auth.

Rivera v New York City Tr. Auth. 2012 NY Slip Op 01128 Decided on February 14, 2012 Appellate Division, First Department 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.

Decided on February 14, 2012
Tom, J.P., Andrias, Catterson, Richter, Abdus-Salaam, JJ.
6805 109199/05

[*1]Lizzette Rivera, Plaintiff-Respondent,

v

New York City Transit Authority, Defendant-Appellant, Manhattan and Bronx Surface Transit Operating Authority, et al., Defendants.




Jeffrey Samel & Partners, New York (David Samel of
counsel), for appellant.
Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac
of counsel), for respondent.

Judgment, Supreme Court, New York County (Paul E. Feinman, J.), entered February 23, 2010, inter alia, awarding plaintiff, upon a jury verdict on damages, unapportioned principal amounts of $710,000 for past pain and suffering and $1 million for future pain and suffering for 40 years, unanimously modified, on the facts, to vacate the awards for past and future pain and suffering and order a new trial as to such damages, unless plaintiff, within 30 days of service of a copy of this order with notice of entry, stipulates to a reduction in the unapportioned damages for past and future pain and suffering to $600,000 and $600,000, respectively, and to entry of an amended judgment in accordance therewith, and otherwise affirmed, without costs.

Defendant's argument that plaintiff's counsel's reference, in summation, to the apportionment of liability warranted a mistrial is unpreserved (see Lucian v Schwartz, 55 AD3d 687, 689 [2008], lv denied 12 NY3d 703 [2009]). In any event, the jury is presumed to have understood and followed the court's extensive curative instructions (see Martelly v New York City Health & Hosps. Corp., 276 AD2d 373 [2000]).

The trial court's procedure of randomly drawing an alternate juror to substitute for a discharged juror, rather than substituting an alternate juror sequentially according to the designation of alternate jurors, was permissible (see CPLR 4106; Xi Yu v New York Univ. Med. Ctr., 4 Misc 3d 602 [2004]).

Plaintiff sustained a tri-malleolar ankle fracture, with dislocation, which required three surgeries and caused tendon and cartilage damage. She continues to have complaints of limitation and pain in her affected ankle and her orthopedic surgeon testified that she had an increased risk of arthritis. The awards for past and future pain and suffering deviate materially [*2]from what would be reasonable compensation to the extent indicated (CPLR 5501[c]; see e.g. Alicea v City of New York, 85 AD3d 585 [2011]; Lowenstein v Normandy Group, LLC, 51 AD3d 517 [2008]).

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

ENTERED: FEBRUARY 14, 2012

CLERK