Opinion
February 19, 1991
Appeal from the Supreme Court, Kings County (Vinik, J.).
Ordered that the order is affirmed, with costs. The plaintiff's time to serve and file a stipulation is extended until 20 days after service upon him of a copy of this decision and order, with notice of entry.
While walking on a Brooklyn street on June 2, 1983, the then 24-year-old plaintiff stumbled on a pothole and fell, injuring his elbow. The jury, finding the plaintiff 40% at fault in the happening of the accident and the defendant, the City of New York, 60% at fault in the happening of the accident, awarded the plaintiff damages in the principal sum of $500,000. The court found that this award "shock[s] the conscience" of the court, and granted a new trial to the plaintiff on the issue of damages only, unless the plaintiff stipulated to an award of $75,000 payable by the defendant. On appeal, the plaintiff urges that the court's reduction of the award from $500,000 to $75,000 was improper.
CPLR 5501 (c) provides that "the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation." We find that the jury award to the plaintiff of $500,000 constituted a material deviation from what would be reasonable compensation (see, Jurgen v Linesburgh, 159 A.D.2d 689). Although the plaintiff sustained a fractured elbow, he can nevertheless extend his arm to 95% of full extension. Further, the plaintiff's claim does not include damages for loss of wages or medical expenses, and there was only minimal evidence that his injury is permanent. Consequently, the trial court's determination is affirmed. Brown, J.P., Balletta, Rosenblatt and Ritter, JJ., concur.