CLOTTER v. Metropolitan Transportation Authority, Defendant. (2009)

Judgment, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered July 22, 2008, upon a jury verdict, awarding plaintiff $1.2 million for past pain and suffering, $1 million for future pain and suffering, $100,000 for past lost earnings, and $600,000 for future lost earnings, as against defendant-appellant New York City Transit Authority, modified, on the facts, to vacate the awards for past and future pain and suffering, and the matter remanded for a trial solely on the issue of damages for past and future pain and suffering, and otherwise affirmed, without costs, unless plaintiff, within 30 days of service of a copy of this order with notice of entry, stipulates to reduce the awards for past and future pain and suffering to $800,000 each, and to entry of an amended judgment in accordance therewith.

The trial evidence established that plaintiff fell due to a defect on a stairway leading into a Transit Authority subway entrance. The cause of the defect was adequately established by plaintiff and her expert by use of, inter alia, plaintiff's photographs (see Hoerner v. Chrysler Fin. Co., L.L.C., 21 A.D.3d 1254, 1255 [2005] ). We find no fault with the method used by plaintiff's expert, which defendant's expert also used.

Plaintiff's awards for past and future lost earnings were supported by her expert. Defendant's expert proffered no testimony as to what plaintiff's future lost earnings would be, other than to note that she would have used the analysis of plaintiff's expert had she projected future earnings. Since defendant failed to present expert testimony of its own, “the jury could therefore have properly relied upon the testimony of plaintiff's expert” (Hoerner, 21 A.D.3d at 1256, 802 N.Y.S.2d 583).

The awards for past and future pain and suffering are excessive. Plaintiff sustained a ruptured quadriceps tendon and an avulsion fracture requiring hospitalization and surgery to repair the rupture, was left with a seven-inch scar as a result of the injury and surgery, and is unable to walk without the use of crutches or a cane. For these injuries, resulting in a partial permanent disability to a 46-year-old woman, the sum of $800,000 for each of past and future pain and suffering is a more appropriate award (see Orellano v. 29 E. 37th St. Realty Corp., 4 A.D.3d 247 [2004], lv denied 4 N.Y.3d 702 [2004] ).

The 46-year-old plaintiff sustained a ruptured quadriceps tendon and a small avulsion fracture of her right patella requiring hospitalization and surgery. I agree with the majority that the award of damages for past and future pain and suffering is excessive. However, in my view, a substantial additional reduction of the award is warranted. The award must not “deviate [ ] materially from what would be reasonable compensation” (CPLR 5501[c] ) and plaintiffs who suffered similar or more severe injuries have been awarded substantially less (see e.g. Orellano v. 29 E. 37th Street Realty Corp., 4 A.D.3d 247, 772 N.Y.S.2d 659 [1st Dept 2004], lv denied 4 N.Y.3d 702 [2004] [$375,000 for each of past and future pain and suffering where 47-year-old plaintiff suffered comminuted fracture of tibia and fibula requiring several surgical procedures during two-month hospital stay and resulting in partial permanent disability] ). Inexplicably, the majority cites Orellano in support of the reduced award it thinks appropriate.

All concur except McGUIRE, J. who concurs in a separate memorandum as follows: