GARCIA v. Esrog Realty Ltd., Defendant-Appellant. (2000)

Judgment, Supreme Court, Bronx County (Janice Bowman, J.), entered January 25, 2000, awarding plaintiffs damages, before structuring, of $300,000, $340,000 and $50,000 for past and future pain and suffering and loss of consortium, respectively, unanimously modified, on the facts, to vacate the awards of damages and to direct a new trial on the issue of damages only, and otherwise affirmed, without costs, unless, within 30 days from the date of this order, the injured plaintiff stipulates to reduce the awards for past and future pain and suffering to $130,000 and $160,000, respectively, and plaintiff spouse stipulates to reduce the award for loss of consortium to $10,000, and to the entry of an amended judgment in accordance therewith.   Appeal from order, same court and Justice, entered on or about October 25, 1999, which, insofar as appealed from as limited by the briefs, denied defendant's motion to set aside the verdict as excessive, unanimously dismissed, without costs, as subsumed within the appeal from the judgment.

The awards are excessive to the extent indicated, where the injured plaintiff, who sustained a fracture to her nondominant wrist in a fall on a defective sidewalk, is able to perform most of her usual preaccident activities and feels pain only when the weather is bad (cf., Remeneski v. McDonald, 237 A.D.2d 204, 655 N.Y.S.2d 475;  Kotopoulos v. Nathan Hale Gardens, 235 A.D.2d 276, 652 N.Y.S.2d 283;  Almada v. Long Is. Lighting Co., 246 A.D.2d 563, 668 N.Y.S.2d 208), and plaintiff spouse presented only some evidence of changes in his life caused by his wife's diminished ability to perform household chores.

MEMORANDUM DECISION.