FERRER v. CITY OF NEW YORK (2008)

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about August 3, 2006, which, in an action for personal injuries sustained in a fall on a icy sidewalk in front of a building owned by defendant City, granted defendant's motion for judgment notwithstanding the verdict, unanimously reversed, on the law and the facts, without costs, the jury's verdict reinstated in all respects except for the award for past pain and suffering, as to which a new trial is directed unless plaintiff stipulates, within 30 days of service of a copy of this order with notice of entry, to decrease the award for past pain and suffering from $1,011,240 to $600,000, and to entry of an amended judgment in accordance therewith.

 The jury's verdict in favor of plaintiff is rationally supported by meteorological evidence and plaintiff's testimony showing, inter alia, that there was a four-inch accumulation of snow and ice that had developed prior to the commencement of the snow, freezing rain and plain rain that ended 22 hours before plaintiff's fall, and permitting an inference that plaintiff fell on preexisting ice (see Tubens v. New York City Hous. Auth., 248 A.D.2d 291, 292, 670 N.Y.S.2d 468 [1998];  Seaman v. City of New York, 294 A.D.2d 144, 742 N.Y.S.2d 35 [2002] ).   Plaintiff, 25 years old at the time of the accident, sustained a fractured right tibia that required two surgeries, and caused complications to his left knee that required surgery, and to his lower back.   He was still required to use a leg brace and cane at the time of trial, six years after the accident, and, in the opinion of his doctor, is permanently disabled.   However, the award for past pain and suffering deviates materially from what is reasonable compensation to the extent indicated (cf. Alvarado v. City of New York, 287 A.D.2d 296, 731 N.Y.S.2d 153 [2001] ).