TORIBIO v. Derez Contracting Corp., Inc., Defendant-Appellant.

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

Victor TORIBIO, Plaintiff-Respondent, v. J.D. POSILLICO, INC., et al., Defendants, Derez Contracting Corp., Inc., Defendant-Appellant.

Decided: August 08, 2002

NARDELLI, J.P., SULLIVAN, WALLACH, RUBIN and FRIEDMAN, JJ. Alexander J. Wulwick, for Plaintiff-Respondent. Kevin J. Brennan, for Defendant-Appellant.

Order, Supreme Court, Bronx County (Paul Victor, J.), entered August 6, 2001, which granted plaintiff's motion to set aside the verdict unless defendant Derez Contracting Corp., Inc. would stipulate to an award of $100,000 for past pain and suffering and $200,000 for future pain and suffering, and denied said defendant's cross motion to dismiss the complaint for failure to establish the facts constituting the claim as required under CPLR § 3215(f), unanimously modified, on the facts, to the extent of increasing the conditional award for past pain and suffering to $140,000 and denying plaintiff's motion with respect to future pain and suffering, and otherwise affirmed, without costs.

 In this personal injury action in which plaintiff seeks damages for a comminuted fracture of the right tibia and other leg injuries resulting from twisting his leg when he stepped off a curb into a water-filled depression in a street under construction, we find that the trial court erred in setting aside the verdict to the extent indicated.   The jury award of only $40,000 for past pain and suffering did not constitute reasonable compensation under the circumstances.   However, we cannot say that its failure to award any damages for future pain and suffering did not represent an appropriate weighing of the evidence, which included a videotape of plaintiff performing his daily work routines.

 Defendant's answer was stricken for frustrating discovery (268 A.D.2d 394, 702 N.Y.S.2d 278), and, as a result, it admitted all traversable allegations in the complaint, including the basic allegation of liability (see, Brown v. Rosedale Nurseries, 259 A.D.2d 256, 686 N.Y.S.2d 22).   In any event, there was evidence, within the ken of an ordinary juror, that defendant was negligent in leaving the depression it created without putting up barricades or warnings.   Under the circumstances, plaintiff was not required to produce expert testimony to demonstrate that the City plans and specifications followed by defendant were so defective that it should have been on notice of the dangerous condition.

We have considered defendant's other contentions and find them unavailing.