HAYES v. NORMANDIE LLC (2003)

Order, Supreme Court, New York County (Kibbie Payne, J.), entered July 17, 2002, which, in an action pursuant to Labor Law § 240(1), inter alia, granted defendants' motions for (1) a new trial to the extent of directing a new trial on the issue of future pain and suffering only unless the parties stipulated to reduce the award for future pain and suffering from $750,000 to $350,000, and (2) collateral source offsets for Social Security and union pension benefits, unanimously modified, on the law, to deny defendants' motions so as to reinstate the damage award for future pain and suffering to $750,000 and to vacate the offset for pension benefits, and otherwise affirmed, without costs.

 The trial court properly disposed of defendant's various challenges to the jury's award of damages.   Plaintiff sustained a comminuted fracture of the right radius extending into the right wrist that required the insertion of a metal plate and screws that will have to be removed in the future.   The award for future pain and suffering is adequately supported by medical evidence that future fusion surgery or implantation of an artificial wrist joint might be necessary to alleviate pain (CPLR 5501[c];  cf.   Cabezas v. City of New York, 303 A.D.2d 307, 756 N.Y.S.2d 566).   Plaintiff's earnings for 1999 were established by testimony from a union member as to plaintiff's hourly wage and hours worked;  thus, defendants were not prejudiced by the trial court's reopening plaintiff's case for the limited purpose of receiving his W 2 form for that year so as to allow a more exact computation (see Feldsberg v. Nitschke, 49 N.Y.2d 636, 643, 427 N.Y.S.2d 751, 404 N.E.2d 1293;  see Guarracino v. Central Hudson Gas & Elec. Corp., 274 A.D.2d 551, 553, 712 N.Y.S.2d 389, lv. dismissed 96 N.Y.2d 727, 722 N.Y.S.2d 789, 745 N.E.2d 1012).   That plaintiff continued to work for a year after his accident does not negate the finding that his injuries were ultimately disabling, as found by the Social Security Administration.   Defendants' claim that they were deprived of a fair trial by plaintiff's attorney's improper comments was not preserved by timely objection or a motion for a mistrial, and we decline to review the alleged misconduct (see Figueroa v. Maternity Infant Care Family Planning Project, 243 A.D.2d 424, 665 N.Y.S.2d 257, lv. denied 91 N.Y.2d 807, 669 N.Y.S.2d 260, 692 N.E.2d 129;  compare Rodriguez v. New York City Hous. Auth., 209 A.D.2d 260, 261, 618 N.Y.S.2d 352;  Berkowitz v. Marriott Corp., 163 A.D.2d 52, 53-54, 558 N.Y.S.2d 511).   While the Social Security payments received by plaintiff and his family members were intended to compensate for lost earnings (see Bryant v. New York City Health & Hosps. Corp., 93 N.Y.2d 592, 608, 695 N.Y.S.2d 39, 716 N.E.2d 1084) and thus properly treated as collateral source payments (CPLR 4545[c];  see Rodgers v. 72nd St. Assoc., 269 A.D.2d 258, 703 N.Y.S.2d 456;  Manfredi v. Preston, 246 A.D.2d 580, 667 N.Y.S.2d 288), the same cannot be said about plaintiff's pension benefits (see Oden v. Chemung County Indus.   Dev. Agency, 87 N.Y.2d 81, 88-89, 637 N.Y.S.2d 670, 661 N.E.2d 142).   Accordingly, we modify to reinstate the damage award for future pain and suffering and to vacate the offset of such pension benefits against the award for lost earnings.   We have considered the parties' other arguments for affirmative relief and find them unavailing.