ORELLANO v. << (2004)

Order, Supreme Court, Bronx County (Stanley Green, J.), entered December 2, 2002, which, after a jury trial resulting in a verdict awarding plaintiff laborer $2.5 million and $3 million for past and future pain and suffering, respectively, $500,000 for each of past and future lost earnings, and $0 for medical expenses, inter alia, granted motions by defendants and third-party defendant to set aside the verdict to the extent of directing a new trial on the issue of damages for past and future pain and suffering unless plaintiff stipulated to accept $300,000 for each of past and future pain and suffering, and vacating the awards for past and future lost earnings and dismissing the claims therefor as a matter of law, unanimously modified, on the law and the facts, to increase the amount to which plaintiff must agree in order to avoid a new trial on damages to $375,000 for each of past and future pain and suffering, and otherwise affirmed, without costs.

 We agree with the trial court that the awards for past and future pain and suffering were excessive.   In our view, however, for a comminuted fracture of the tibia and fibula that required several surgical procedures during a two-month hospital stay and extensive physical therapy thereafter, and resulted in a partial permanent disability to a 47-year-old man, the sum of $375,000 for each of past and future pain and suffering is a more appropriate award (see Brownell v. City of New York, 277 A.D.2d 31, 715 N.Y.S.2d 405, lv. denied 96 N.Y.2d 712, 729 N.Y.S.2d 439, 754 N.E.2d 199).   Plaintiff's testimony as to his past earnings was unsubstantiated by tax returns, W-2 forms or other relevant documents, and thus insufficient as a matter of law to show any loss of earnings (see Martinez v. Royal-Pak Sys., 300 A.D.2d 198, 751 N.Y.S.2d 738).   We have considered the parties' other arguments for affirmative relief and find them unavailing.