CHARLES v. DAY (2001)

In an action to recover damages for medical malpractice, the defendant Phillipe Day appeals from an amended judgment of the Supreme Court, Kings County (Spodek, J.), entered March 23, 2000, which, upon a jury verdict awarding the plaintiff $600,000 ($100,000 for past pain and suffering, and $500,000 for future pain and suffering), is in favor of the plaintiff and against him.

ORDERED that the amended judgment is reversed on the law, with costs, and a new trial is granted on the issue of damages only, unless within 30 days after service upon Nicole Charles, as guardian for the plaintiff, of a copy of this decision and order, with notice of entry, Nicole Charles, as guardian for the plaintiff, shall serve and file in the office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting to reduce the verdict as to (1) damages for past pain and suffering from the sum of $100,000 to the sum of $50,000, and (2) future pain and suffering from the sum of $500,000 to the sum of $250,000, and to the entry of an amended judgment accordingly;  in the event that Nicole Charles, as guardian for the plaintiff, so stipulates, then the amended judgment, as so reduced and further amended, is affirmed, without costs or disbursements.

As the result of malpractice committed by the defendant Phillipe Day, the infant plaintiff suffers from a mild form of Erb's palsy, which causes his right arm to be slightly weaker and smaller than his left arm and his right shoulder blade to protrude from his back.   Despite his injury, the plaintiff is able to participate in nearly all school gym class activities, and to perform normal daily tasks with little or no difficulty.   Moreover, the plaintiff's social relationships have not been affected by this condition.   Therefore, the jury's award of $100,000 for past pain and suffering and $500,000 for future pain and suffering to the plaintiff was excessive to the extent indicated (see, CPLR 5501[c];  Reid v. County of Nassau, 215 A.D.2d 466, 627 N.Y.S.2d 396;  Velez v. Empire Medical Group, 201 A.D.2d 640, 608 N.Y.S.2d 246).