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concluding that a $110,000 award for future occupational therapy was "speculative, and thus, cannot stand" and ordering remittitur to $6,750 when evidence showed that the plaintiff would only need "a definite period of two to four months at three sessions per week" for $125 per session
Summary of this case from Marcoux v. Farm Service Supplies, Inc.Opinion
2001-01077
Submitted March 5, 2002.
April 15, 2002.
In an action to recover damages for personal injuries, the defendant Pecker Iron Works of NY, Inc., appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Suffolk County (Tanenbaum, J.), dated January 23, 2001, as, upon a jury verdict finding that the plaintiff had sustained damages of $350,000 for past pain and suffering, $730,000 for future pain and suffering, $110,000 for future occupational therapy, and $125,000 for prior lost earnings, is in favor of the plaintiff and against it in the principal sum of $1,315,000, and the plaintiff cross-appeals, as limited by his brief, from so much of the same judgment as failed to award him interest on future damages.
Ahmuty, Demers McManus, Albertson, N.Y. (Frederick B. Simpson and Brendan T. Fitzpatrick on the brief), for appellant-respondent.
Scott Baron Associates, P.C. (Mischel, Neuman Horn, P.C., New York, N.Y. [Scott T. Horn] of counsel), for respondent-appellant.
Before: DAVID S. RITTER, J.P., GLORIA GOLDSTEIN, WILLIAM D. FRIEDMANN, DANIEL F. LUCIANO, JJ.
ORDERED that the judgment is modified, on the law and the facts and as a matter of discretion, by deleting the provision thereof awarding the plaintiff damages in the sum of $730,000 for future pain and suffering and $110,000 for future occupational therapy, and granting a new trial with respect thereto, with interest on future damages, if any, at the rate of 9% per annum pursuant to CPLR 5004; as so modified, the judgment is affirmed insofar as appealed from, with costs payable to the defendant Pecker Iron Works of NY, Inc., by the plaintiff, unless within 30 days after service upon the plaintiff of a copy of this decision and order, he shall serve and file in the office of the Clerk of the Supreme Court, Suffolk County, a written stipulation consenting to reduce the verdict as to future pain and suffering from the sum of $730,000 to the sum of $400,000, and to reduce the verdict as to future occupational therapy from the sum of $110,000 to the sum of $6,750, and to the entry of an amended judgment accordingly, with interest on future damages at the rate of 9% per annum pursuant to CPLR 5004; in the event that the plaintiff so stipulates, then the judgment, as so reduced and amended, is affirmed insofar as appealed from, without costs or disbursements.
Upon falling from a ladder while working as an ironworker, the plaintiff sustained a subluxation in his right shoulder, a dislocation in his left shoulder, fractures to his left humerus and left clavicle, and bilateral carpal tunnel syndrome. In connection with the injuries to his shoulders, he underwent two surgeries and 14 months of occupational therapy. According to the plaintiff, he continues to experience pain, has difficulty sleeping, and can no longer engage in activities which he formerly enjoyed. A doctor who examined him testified that he will need additional occupational therapy and will require surgeries in connection with the bilateral carpal tunnel syndrome.
Given the nature of the plaintiff's injuries, the award of $350,000 for past pain and suffering constituted reasonable compensation (see Mojica v. City of New York, 199 A.D.2d 250). However, the jury award of $730,000 for future pain and suffering was excessive to the extent indicated herein (see CPLR 5501[c]; see generally Rodriguez v. New York City Tr. Auth., 273 A.D.2d 370; Dubois v. Peters, 249 A.D.2d 261).
Further, the award of $110,000 for future occupational therapy was speculative and, thus, cannot stand (see Korn v. Levick, 231 A.D.2d 606, 607; Sanvenero v. Cleary, 225 A.D.2d 755, 756). At trial, the doctor testified that one session of occupational therapy costs approximately $125. While he stated that the plaintiff may need additional occupational therapy, he only testified to a definite period of two to four months at three sessions each week. Therefore, the highest sustainable amount of damages for future occupational therapy is $6,750 (see Korn v. Levick, supra; Cramer v. Kuhns, 213 A.D.2d 131, 138-139).
The Supreme Court should have awarded the plaintiff interest on future damages at the rate of 9% per annum pursuant to CPLR 5004 (see Rohring v. City of Niagara Falls, 84 N.Y.2d 60, 69).
The remaining contentions of the defendant Pecker Iron Works of NY, Inc., are without merit.
RITTER, J.P., GOLDSTEIN, FRIEDMANN and LUCIANO, JJ., concur.