FERNANDEZ v. CONTINENTAL AIRLINES INC (1998)

In an action to recover damages for personal injuries, etc., the plaintiffs Edwin Fernandez and Elizabeth Fernandez appeal, as limited by their brief, on the ground of inadequacy, from so much of a judgment of the Supreme Court, Kings County (S.Leone, J.), entered July 30, 1997, as awarded the plaintiff Edwin Fernandez only $15,000 for past pain and suffering and $10,800 for lost earnings, and failed to award damages for future pain and suffering.

ORDERED that the appeal by the plaintiff Elizabeth Fernandez is dismissed, as she is not aggrieved by the portions of the judgment appealed from;  and it is further,

ORDERED that the judgment is affirmed insofar as reviewed;  and it is further,

ORDERED that one bill of costs is awarded to the respondent, payable by the appellant Edwin Fernandez.

The injured plaintiff Edwin Fernandez (hereinafter the plaintiff) sustained injuries, inter alia, to his right ankle in an accident which occurred on July 5, 1992.   As a result of his ankle injury, the plaintiff was out of work until the following November.   The plaintiff then worked until December 1993, when he injured his right ankle again and was out of work until July 1995.   The plaintiff alleges that the July 1992 injury is the cause of continuing instability in his ankle, and argues that the award of damages was inadequate.

 We disagree.   The jury was presented with conflicting medical testimony on the subject of whether there is any legitimate medical explanation for the alleged instability in the plaintiff's ankle, and was entitled to accept the opinion of the defendant's expert and reject that of the plaintiff's expert.   In light of this conflicting testimony, it cannot be said that the damage award deviated materially from what would be considered reasonable compensation (see, CPLR 5501[c];  Ventriglio v. Active Airport Serv., 234 A.D.2d 451, 453, 651 N.Y.S.2d 162;  Burgos v. Lovell Realty, 229 A.D.2d 558, 645 N.Y.S.2d 871;  Benloss v. Roal Drug Corp., 215 A.D.2d 423, 627 N.Y.S.2d 560).

MEMORANDUM BY THE COURT.