ATKINSON v. BUCH (2005)

Judgment, Supreme Court, Bronx County (Howard R. Silver, J. and a jury), entered on or about March 24, 2004, in an action for dental malpractice, insofar as appealed from as limited by the briefs, awarding plaintiff $10,000 for past pain and suffering, unanimously modified, on the facts, to vacate the award for past pain and suffering and remand for a new trial on that issue only, and otherwise affirmed, without costs, unless defendant, within 30 days of service of a copy of this order with notice of entry, stipulates to increase the award for past pain and suffering to $75,000, and to the entry of an amended judgment in accordance therewith.

Plaintiff sustained a broken jaw while undergoing a tooth extraction performed by defendant oral surgeon, whereupon defendant immediately wired plaintiff's mouth shut.   Plaintiff was under local anesthesia during the extraction, and therefore did not experience pain at the moment his jaw was fractured, or while his mouth was being wired, but thereafter, over the eight weeks that his mouth was wired, did experience varying degrees of pain and loss of enjoyment of life, could eat only through a straw, and did not go to work.   Under the circumstances, the $10,000 award for past pain and suffering deviates materially from what is reasonable compensation (CPLR 5501[c];  cf. Casey v. City of Albany, 63 A.D.2d 798, 405 N.Y.S.2d 142 [1978], appeal dismissed 45 N.Y.2d 838 [1978] ), and we accordingly modify as above indicated.