LEAL v. Virginia Deleal, Defendant.

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

Gabriela LEAL, etc., et al., Plaintiffs-Appellants, v. Lawrence LEVY, Defendant-Respondent, Virginia Deleal, Defendant.

Decided: September 28, 2006

MAZZARELLI, J.P., ANDRIAS, SULLIVAN, NARDELLI, McGUIRE, JJ. Koval, Rejtig & Dean, PLLC, Mineola (Christopher Dean of counsel), for appellants. Paul F. McAloon, New York, for respondent.

Order, Supreme Court, Bronx County (Nelson Roman, J.), entered September 27, 2005, which, after a jury verdict awarding plaintiff Gabriela Leal $400,000 for past pain and suffering and $650,000 for future pain and suffering over 20 years, granted defendant's motion for a new trial on damages unless plaintiffs stipulated to decrease the awards for past pain and suffering to $75,000 and future pain and suffering to $80,000, unanimously affirmed, without costs.

In October 2000, 13-year-old plaintiff Gabriela Leal sustained injuries while seated in the rear passenger seat of a car owned and operated by her mother, defendant Deleal, which was sideswiped by a vehicle owned and operated by defendant Levy. Although the infant plaintiff experienced pain in her neck, back and right shoulder, she did not seek treatment until the day after the accident, when she went to a physical therapy center.   About two weeks later, plaintiff consulted an orthopedist, who advised her to continue with physical therapy and ordered MRI studies, which revealed derangements of the cervical and lumbar spine, a tear of the glenoid labrum, and a disc bulge at L5-S1.

The infant plaintiff was last seen by her orthopedist for treatment about four years before trial.   Her last physical therapy session was about three and a half years before trial.   She was never prescribed pain medication, and no surgery was recommended.

Notwithstanding the permanent nature of the injuries, the trial court's reduction of the jury's awards as deviating materially from reasonable compensation was warranted under the circumstances of this case (CPLR 5501 [c];  Elias v. Linder, 4 A.D.3d 136, 771 N.Y.S.2d 344 [2004] ).