SCHULTZ v. TURNER CONSTRUCTION COMPANY (2000)

Judgment, Supreme Court, New York County (Michael Stallman, J. and a jury), entered October 26, 1999, awarding plaintiffs, inter alia, damages in the principal amounts of $200,000 and $400,000 for past and future pain and suffering, respectively, and $55,000 and $200,000 for past and future loss of services, respectively, unanimously affirmed, without costs.

Defendants' claim that plaintiffs fraudulently concealed evidence of re-injury was not preserved for appellate review by timely objection, and we decline to consider it (CPLR 4017).   Were we to consider such claim, we would find that defendants' failure to discover this evidence was not due to fraud on plaintiffs' part but to lack of due diligence on their part.   In addition, we would note that the re-injury was discovered during the course of plaintiff's direct case, that the jury was advised thereof and instructed not to factor it into their deliberations, and that defendants, as the trial court stated, “really made hay with it” in a summation that emphasized the nondisclosure as a “deliberate deception”.   The challenged items of damages are not excessive for a knee injury that required arthroscopic surgery followed by eight months of physical therapy three times a week, continues to require follow-up care, will likely require additional surgery in the future, and has had a significant and severe impact on the quality of the injured plaintiff's life and on his ability to perform many household duties, and will continue to do so over a period of 25 years.

MEMORANDUM DECISION.