ROBINSON v. CAMBRIDGE REALTY CO LLC (2009)

Judgment, Supreme Court, Bronx County (Dominic R. Massaro, J.), entered September 25, 2008, upon a jury verdict, awarding plaintiff, inter alia, damages in the principal amount of $350,000 for past pain and suffering and $350,000 for future pain and suffering, unanimously affirmed, without costs.   Appeal from order, same court and Justice, entered June 11, 2008, which denied defendants' motion to set aside or modify the verdict, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

 No basis exists to disturb the jury's finding that the alleged dangerous condition-a hole about six inches long, four to five inches wide, and two inches deep located on the sidewalk portion of the driveway leading into the garage near the rear entrance of the apartment building, managed by defendants, in which plaintiff resides-was not a trivial defect (see Trincere v. County of Suffolk, 90 N.Y.2d 976, 977-978, 665 N.Y.S.2d 615, 688 N.E.2d 489 [1997] ).   Defendants' challenge to the jury charge on triviality is not preserved and we decline to review it.   Nor should the jury's finding of no comparative negligence be disturbed on the basis of plaintiff's testimony that she had previously traversed the area.   Given plaintiff's additional testimony that the accident occurred while it was dark outside in a dimly lit area and that there were many defects in the driveway, and given no evidence that the portion of the sidewalk/driveway with the defect was visible at night, the jury could have found that plaintiff could not have been expected to remember the location of all of the defects on this nine-foot wide sidewalk/driveway.   The $350,000 awards for each of past and future pain and suffering are not excessive, where plaintiff suffered a comminuted shoulder fracture, underwent shoulder replacement surgery, was unable to care for herself for several months, and complained of pain from the 2003 accident through the 2008 trial (cf. Baez v. New York City Tr. Auth., 15 A.D.3d 309, 790 N.Y.S.2d 110 [2005] ).