811 N.Y.S.2d 364, 2006 N.Y. Slip Op. 01718
© 2010 Thomson Reuters. No claim to original U.S. Government Works. / XXX
Lantigua v. 700 W. 178th Street Associates, LLC, 27 A.D.3d 266 (2006)
811 N.Y.S.2d 364, 2006 N.Y. Slip Op. 01718
811 N.Y.S.2d 364
Supreme Court, Appellate Division, First Department, New York.
Patria LANTIGUA, Plaintiff-Respondent,
v.
700 W. 178TH STREET ASSOCIATES, LLC, et al., Defendants-Appellants,
Burton Goldberg, et al., Defendants.
March 9, 2006.
Synopsis
Background: Restaurant employee who slipped and fell in stairway brought personal injury action to recover damages for her injuries. The Supreme Court, New York County, Michael D. Stallman, J., entered judgment on jury verdict apportioning liability 80 percent against defendants and awarding employee damages in principal amount of $821,100.00. Defendants appealed.
Holdings: The Supreme Court, Appellate Division, held that:
1 jury verdict apportioning 80 percent of liability against defendants was supported by a fair interpretation of the evidence;
2 award of $200,000 for future pain and suffering did not deviate materially from what was reasonable compensation for employee’s injury;
3 employee’s testimony adequately supported jury’s award of $70,000 for past lost wages;
4 award of $150,000 for future lost earnings over six years was against the weight of the evidence; and
5 award of $200,000 for future medical expenses was against the weight of the evidence.
Affirmed as modified.
West Headnotes (5)
1 / NegligenceBuildings and other structuresNegligenceEffect of others’ fault; comparative negligence
Jury liability verdict and apportionment of 80 percent of fault to defendants for restaurant employee’s accident was supported by a fair interpretation of the evidence, which showed that leaking sewer pipe above stairway where employee slipped and fell was structural defect for which defendants were responsible, and that leak had existed for at least two months prior to accident, which was long enough for defendants to have discovered and corrected it.
1 Cases that cite this headnote
2 / DamagesFractures, sprains, and connective tissue injuries
Jury’s award of $200,000 for future pain and suffering to restaurant employee who was injured when she slipped and fell on stairway did not deviate materially from what was reasonable compensation for comminuted, displaced intra-articular left distal radius fracture that required open reduction and internal fixation and second surgical procedure to remove metal hardware previously inserted into employee’s wrist.
2 Cases that cite this headnote
3 / DamagesLoss of Earnings
Restaurant employee’s testimony adequately supported jury’s award of $70,000 for past lost wages, in employee’s action to recover damages for injuries that she sustained in slip and fall accident in stairway, when employee indicated that, at the time of accident, three months after she went to work at restaurant as cook, she was earning $300 per week, but before that had for years earned $400 per week at another restaurant, and that, before trial, she was out of work for a total of about three and a half years.
1 Cases that cite this headnote
4 / DamagesImpairment of Earning Capacity
Jury’s award of $150,000 for future lost earnings over six years was against the weight of the evidence in restaurant employee’s action to recover damages for injuries that she sustained in slip and fall accident in stairway, in that award should not have exceeded $125,000 in light of employee’s own testimony claiming a maximum earning capacity of $400 per week.
1 Cases that cite this headnote
5 / DamagesFuture expenses
Jury’s award of $200,000 for future medical expenses in restaurant employee’s action for damages for injuries sustained in slip and fall accident in stairway was against the weight of the evidence, which showed that employee’s future medical expenses would amount to approximately $4,000 a year, such that, given jury’s finding of 20-year life expectancy, future medical award should have been $80,000; although employee’s orthopedist opined that employee would be candidate for future wrist fusion surgery, there was no evidence as to cost of such operation or any indication as to whether employee was even considering procedure.
1 Cases that cite this headnote
Attorneys and Law Firms
**365 Barrett, Lazar & Lincoln, LLC, Forest Hills (Paul L. Lincoln of counsel), for appellants.
Gorayeb & Associates, P.C., New York (Mark H. Edwards of counsel), for respondent.
TOM, J.P., FRIEDMAN, GONZALEZ, SWEENY, McGUIRE, JJ.
Opinion
*266 Judgment, Supreme Court, New York County (Michael D. *267 Stallman, J.), entered October 5, 2004, after a jury trial, apportioning liability 80% against defendants-appellants, and awarding plaintiff damages in the principal amount of $821,100, unanimously modified, on the facts, to vacate the awards of $200,000 and $150,000 for future medical expenses and future lost earnings, respectively, and remand for a new trial on those issues only, and otherwise affirmed, **366 without costs, unless plaintiff, within 30 days of service of a copy of this order with notice of entry, stipulates to reductions of the awards for future medical expenses and future lost earnings to $80,000 and $125,000, respectively, and to the entry of an amended judgment in accordance therewith.
1 2 3 4 5 The jury’s liability verdict and 80% apportionment against appellants is supported by a fair interpretation of the evidence (see McDermott v. Coffee Beanery, Ltd., 9 A.D.3d 195, 206, 777 N.Y.S.2d 103 [2004] ) showing that the leaking sewer pipe above the stairway where plaintiff slipped and fell was a structural defect for which appellants were responsible, and that the leak had existed for at least two months prior to the accident, long enough for appellants to have discovered and corrected it. The jury’s award of $200,000 for future pain and suffering, for a comminuted, displaced intra-articular left distal radius fracture that required open reduction and internal fixation and a second surgical procedure to remove the metal hardware previously inserted into plaintiff’s wrist, does not deviate materially from what is reasonable compensation (see Hayes v. Normandie LLC, 306 A.D.2d 133, 761 N.Y.S.2d 645 [2003], lv. dismissed 100 N.Y.2d 640, 769 N.Y.S.2d 204, 801 N.E.2d 425 [2003]; Cabezas v. City of New York, 303 A.D.2d 307, 756 N.Y.S.2d 566 [2003] ). The jury’s award of $70,000 for past lost wages is adequately supported by plaintiff’s testimony that at the time of the accident, three months after she went to work at defendant restaurant as a cook, she was making $300 per week but before that had for years earned $400 per week at another restaurant, and that before trial she was out of work for a total of about three and a half years. However, the jury’s award of $150,000 for future lost earnings over six years is against the weight of the evidence. Given plaintiff’s own testimony claiming a maximum earning capacity of $400 per week, the award should not have exceeded $125,000. The jury’s award of $200,000 for future medical expenses is also against the weight of the evidence showing that plaintiff’s future medical expenses would amount to approximately $4000 a year. Given the jury’s finding of a 20-year life expectancy, the future medical award should have been $80,000. Although plaintiff’s orthopedist opined that plaintiff would be a candidate for a future wrist fusion surgery, there was no evidence as to the cost of such an operation or any indication as to whether plaintiff was even considering such a *268 procedure. We have considered appellants’ remaining arguments and find them unavailing.
Parallel Citations
27 A.D.3d 266, 2006 N.Y. Slip Op. 01718
© 2010 Thomson Reuters. No claim to original U.S. Government Works. / XXXLantigua v. 700 W. 178th Street Associates, LLC, 27 A.D.3d 266 (2006)
811 N.Y.S.2d 364, 2006 N.Y. Slip Op. 01718
End of Document / © 2010 Thomson Reuters. No claim to original U.S. Government Works.
© 2010 Thomson Reuters. No claim to original U.S. Government Works. / XXX
Lantigua v. 700 W. 178th Street Associates, LLC, 27 A.D.3d 266 (2006)
811 N.Y.S.2d 364, 2006 N.Y. Slip Op. 01718
© 2010 Thomson Reuters. No claim to original U.S. Government Works. / XXX