Summary
In Burton v. New York City Housing Authority, 191 A.D.2d 669, 595 N.Y.S.2d 807 (2d Dep't 1993), the plaintiff, who was 26 years old at the time, sustained a knee injury of approximately the same degree of severity — if not greater severity — as that suffered by the plaintiff in the case at bar.
Summary of this case from Mazyck v. Long Island R.R. Co.Opinion
March 29, 1993
Appeal from the Supreme Court, Kings County (Irving Aronin, J.).
Ordered that the judgment is modified, on the facts and as an exercise of discretion, by reducing the principal sum awarded to the plaintiff to the principal sum of $70,406.70, representing the defendant's proportionate share of the damages for past and future medical expenses, and adding thereto a decretal paragraph severing the plaintiff's claim to recover damages for pain and suffering and granting a new trial with respect thereto unless the plaintiff serves and files in the Office of the Clerk of the Supreme Court, Kings County, a written stipulation signed by him consenting to decrease the verdict as to damages for pain and suffering from $525,000 to $262,500, and to the entry of an amended judgment accordingly awarding the plaintiff the principal sum of $241,031.70, plus costs and interest; as so modified, the judgment is affirmed, without costs or disbursements, and the plaintiff's time to serve and file the stipulation is extended until 20 days after service upon him of a copy of this decision and order, with notice of entry; in the event the plaintiff so stipulates, then the judgment, as so reduced and amended, is affirmed, without costs or disbursements.
The plaintiff, who was 26 years old at the time, sustained a serious knee injury when he fell down a stairway in the public area of a building owned and maintained by the defendant. The evidence clearly supported the jury's conclusion that the accident resulted from the state of disrepair in which the stairway was maintained. As a result of the accident the plaintiff suffered a ruptured meniscus, along with related damage to ligaments, tendons and soft tissue. The plaintiff was required to undergo reconstructive surgery which involved the removal of the ruptured meniscus. A subsequent arthroscopic examination revealed severe cartilage deterioration, which in the opinion of the plaintiff's medical expert indicated the probable need for a future knee replacement operation. This expert also concluded that the plaintiff's knee had developed a severe arthritic condition and that the injury was permanent in nature.
The trial court improvidently exercised its discretion by entirely curtailing the defendant's cross-examination of the plaintiff and other of the plaintiff's witnesses concerning the underlying facts of his prior conviction of endangering the welfare of a minor and his alleged excessive corporal punishment of his former girlfriend's children (see, CPLR 4513; Murphy v Estate of Vece, 173 A.D.2d 445; Gedrin v. Long Is. Jewish-Hillside Med. Ctr., 119 A.D.2d 799; see also, Richardson, Evidence §§ 500, 506 [Prince 10th ed]). However, under the facts of this case we find that the error was harmless as it did not substantially prejudice the defendant's case (see, Kutanovski v. DeCicco, 152 A.D.2d 540; Rodriguez v. Board of Educ., 104 A.D.2d 978).
Contrary to the defendant's assertion, the trial court's action in refusing to preclude testimony by two of the plaintiff's witnesses on the ground that the plaintiff failed to formally notify the defendant of their names and addresses was not an improvident exercise of discretion. The improper conduct by plaintiff's counsel was not willful or contumacious (see, DeJesus v. Finnegan, 137 A.D.2d 649; Bermudez v. Laminates Unlimited, 134 A.D.2d 314), and the record demonstrates that one of these witnesses had actually been interviewed by the defendant's investigators, while defense counsel was given the opportunity to depose the other prior to that witness testifying. In addition, the existence of both witnesses had been made known to the defendant at the plaintiff's examination before trial. Taken together, these facts demonstrate the propriety of the trial court's ruling (see, Locastro v. Horn, 138 A.D.2d 358; DeJesus v. Finnegan, 137 A.D.2d 649, supra; Bermudez v. Laminates Unlimited, 134 A.D.2d 314, supra; Sadler v. Barrow, 108 A.D.2d 739; cf., Hughes v. Elias, 120 A.D.2d 703).
Although the plaintiff's arthroscopic examination was not listed in his bill of particulars, it is clear that this procedure resulted only in the confirmation of those injuries which were properly alleged by the plaintiff. The defendant was in no way unfairly surprised by the admission of testimony on this point (see, Holbrook v. Jamesway Corp., 141 A.D.2d 905, 907).
However, we find that the damages for pain and suffering are excessive to the extent indicated because they deviate materially from what would be reasonable compensation under the circumstances of this case (see, CPLR 5501 [c]; see generally, Castellano v. City of New York, 183 A.D.2d 800; Bisbee v Independent Coach Corp., 182 A.D.2d 661; Silva v. Micelli, 178 A.D.2d 521; Stanback v. New York, 163 A.D.2d 298). Thompson, J.P., Sullivan, O'Brien and Copertino, JJ., concur.