MARTINEZ v. MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY

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Supreme Court, Appellate Division, First Department, New York.

Rey MARTINEZ, Plaintiff-Respondent, v. MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, et al., Defendants-Appellants.

Decided: November 22, 2005

SAXE, J.P., MARLOW, ELLERIN, GONZALEZ, McGUIRE, JJ. Steve S. Efron, New York (Renée L. Cyr of counsel), for appellants. Weiss & Rosenbloom, P.C., New York (Hiram Anthony Raldiris of counsel), for respondent.

Judgment, Supreme Court, New York County (Paul G. Feinman, J. and a jury), entered October 25, 2004, awarding plaintiff damages for past and future pain and suffering in the principal amounts of $150,000 and $750,000, respectively, unanimously modified, on the facts, to vacate the award of damages for future pain and suffering and direct a new trial thereon and otherwise affirmed, without costs, unless, within 30 days after service of a copy of this order with notice of entry, plaintiff stipulates to reduce the award for future pain and suffering to $450,000, and to entry of an amended judgment in accordance therewith.

 Although plaintiff complains of lifestyle limitations as a result of a herniated disc at the L5-S1 level with nerve root impingement and resulting back pain, leg numbness and restriction in ranges of motion, he was never hospitalized and has had and is not expected to have surgery, was able to return to his job as a cab diver and claims no lost earnings, and is able to manage his lower back and leg pain with over-the-counter Tylenol.   In these circumstances, the $750,000 award for future pain and suffering over 39.9 years deviates materially from what is reasonable compensation to the extent indicated (cf. Donlon v. City of New York, 284 A.D.2d 13, 727 N.Y.S.2d 94 [2001];  Kane v. Coundorous, 11 A.D.3d 304, 783 N.Y.S.2d 530 [2004] ).   The $150,000 award for past pain and suffering over more than seven years does not deviate materially from what is reasonable compensation under the circumstances.