SANFILIPPO v. CITY OF NEW YORK

Reset A A Font size: Print

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

Joseph SANFILIPPO, Plaintiff-Appellant, v. CITY OF NEW YORK, Defendant-Respondent.

Decided: May 18, 2000

WILLIAMS, J.P., TOM, MAZZARELLI and BUCKLEY, JJ. Laura Gentile, for Plaintiff-Appellant. Alan Beckoff, for Defendant-Respondent.

Judgment, Supreme Court, New York County (Harold Tompkins, J.), entered January 22, 1999, after a jury trial, awarding plaintiff $21,152. 00 for past lost earnings, but nothing for past pain and suffering, past medical expenses, future lost earnings, future pain and suffering or future medical expenses, unanimously modified, on the law and the facts, to award plaintiff $55,585.69 for past medical expenses and to remand the matter for a new trial on the issue of damages for plaintiff's past pain and suffering only, and otherwise affirmed, without costs.

 Defendant correctly concedes that the failure to award past medical expenses and past pain and suffering is inconsistent with a finding of liability against the defendant and with an award for approximately 9 1/212 months of past lost earnings (see, Schaefer v. RCP Assocs., 232 A.D.2d 286, 649 N.Y.S.2d 13;  see generally, Pares v. LaPrade, 266 A.D.2d 852, 697 N.Y.S.2d 413;  Kennett v. Piotrowski, 234 A.D.2d 983, 651 N.Y.S.2d 820).   Additionally, the parties had stipulated to the fair and reasonable value of past medical expenses in the amount of $55,585.69 and that stipulation should be enforced (see, Parsons v. City of New York, 195 A.D.2d 282, 599 N.Y.S.2d 594).   The jury verdict as to past lost earnings and future damages should, however, be affirmed since, in light of the conflicting evidence as to the severity and permanency of plaintiff's injury, including, inter alia, the evidence of plaintiff's own expert, whose notes indicated that shortly before trial plaintiff's reflexes were intact, his strength was good and there was no sign of ulnar neuropathy, as well as X-rays that showed no herniation to plaintiff's discs, we cannot say that the jury verdict with regard to those components of plaintiff's damages could not have been reached on any fair interpretation of the evidence (see, Grassi v. Ulrich, 87 N.Y.2d 954, 956, 641 N.Y.S.2d 588, 664 N.E.2d 499;  Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 631 N.Y.S.2d 122, 655 N.E.2d 163;  Kelley v. Balasco, 226 A.D.2d 880, 640 N.Y.S.2d 652).

We have considered plaintiff's remaining contentions and find them to be unavailing.

MEMORANDUM DECISION.