FAULISE v. TROUT (1998)

Plaintiff contends that the award of damages for the past pain and suffering of her daughter Leslie and the failure to award damages to Leslie for future pain and suffering deviate materially from what would be reasonable compensation for her injuries.

While riding her bicycle in June 1992, Leslie was hit by an automobile driven by defendant.   Leslie, who was then seven years old, broke her right femur and suffered multiple contusions.   Leslie had two surgeries, was in traction for three weeks, and was then encased in a partial body cast for the remainder of the summer.   While in the body cast, she was unable to move on her own.   After the cast was removed, she was on crutches for several months and had to receive home schooling for two months.   Leslie testified that she had scars on her injured leg and that, at the time of trial over four years later, her leg still hurt sometimes.   Upon examining Leslie in February 1997, her doctor found that her right thigh had one inch of atrophy, and her right lower extremity was one-quarter-inch longer than her left.   He predicted no residual disability.

We conclude that the award of $10,000 for past pain and suffering and the failure to award damages for future pain and suffering deviate materially from what would be reasonable compensation (see, CPLR 5501[c];  Inya v. Ide Hyundai, Inc., 209 A.D.2d 1015, 619 N.Y.S.2d 440;  see also, Stiso v. Piccarello, 120 A.D.2d 516, 518, 501 N.Y.S.2d 715).   Therefore, we reverse the judgment and grant a new trial on damages only unless defendant, within 20 days of service of a copy of the order of this Court with notice of entry, stipulates to increase the verdict to $80,000 for past pain and suffering and $10,000 for future pain and suffering, in which event the judgment is modified accordingly.

Judgment unanimously reversed on the law without costs and new trial granted on damages only unless defendant, within 20 days of service of a copy of the order of this Court with notice of entry, stipulates to increase the verdict to $80,000 for past pain and suffering and $10,000 for future pain and suffering, in which event the judgment is modified accordingly and as modified affirmed without costs.

MEMORANDUM: