Rey Martinez v Manhattan and Bronx Surface Transit Operating Authority

Martinez v Manhattan & Bronx Surface Tr. Operating Auth. 2005 NY Slip Op 08889 [23 AD3d 302] November 22, 2005 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 18, 2006

Rey Martinez, Respondent,
v
Manhattan and Bronx Surface Transit Operating Authority et al., Appellants.

—[*1]

Judgment, Supreme Court, New York County (Paul G. Feinman, J., and a jury), entered October 25, 2004, awarding plaintiff damages for past and future pain and suffering in the principal amounts of $150,000 and $750,000, respectively, unanimously modified, on the facts, to vacate the award of damages for future pain and suffering and direct a new trial thereon and otherwise affirmed, without costs, unless, within 30 days after service of a copy of this order with notice of entry, plaintiff stipulates to reduce the award for future pain and suffering to $450,000, and to entry of an amended judgment in accordance therewith.

Although plaintiff complains of lifestyle limitations as a result of a herniated disc at the L5-S1 level with nerve root impingement and resulting back pain, leg numbness and restriction in ranges of motion, he was never hospitalized and has not had and is not expected to have surgery, was able to return to his job as a cab driver and claims no lost earnings, and is able to manage his lower back and leg pain with over-the-counter Tylenol. In these circumstances, the $750,000 award for future pain and suffering over 39.9 years deviates materially from what is reasonable compensation to the extent indicated (cf. Donlon v City of New York, 284 AD2d 13 [2001]; Kane v Coundorous, 11 AD3d 304 [2004]). The $150,000 award for past pain and suffering over more than seven years does not deviate materially from what is reasonable compensation under the circumstances. Concur—Saxe, J.P., Marlow, Ellerin, Gonzalez and McGuire, JJ.