Opinion
March 6, 2001.
Judgment, Supreme Court, Bronx County (Lucindo Suarez, J., and a jury), entered January 24, 2000, awarding plaintiff damages against defendant City of New York in the principal amounts of $500,000 for past pain and suffering and $600,000 for future pain and suffering over 20 years, unanimously modified, on the facts, to remand for a new trial on the issue of damages for future pain and suffering only, and otherwise affirmed, without costs, unless, within 30 days of 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.
Brian J. Isaac, for plaintiff-respondent.
Dona B. Morris, for defendants-appellants.
Before: Nardelli, J.P., Williams, Tom, Lerner, Friedman, JJ.
Plaintiff sustained injuries as a result of stepping into a hole while playing baseball on a field in defendant's park. The trial court correctly rejected defendant' s request to charge assumption of risk, the evidence being uncontroverted, that the hole was not, as defendant claims, "open and obvious" (citing, inter alia, Maddox v. City of New York, 66 N.Y.2d 270, 27 7), but concealed by grass (see, Morgan v. State of New York, 90 N.Y.2d 471, 485, 488-489; Swan v. City of New York, 272 A.D.2d 394; Torres v. City of New York, 271 A.D.2d 306). We find the award for future pain and suffering deviates materially from what is reasonable compensation under the circumstances to the extent indicated. We have considered and rejected defendants' other arguments.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.