KIRCHER v. MOTEL INC

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

Brian KIRCHER, Plaintiff-Respondent, v. MOTEL 6 G.P., INC., Defendant-Appellant.

Decided: May 20, 2003

NARDELLI, J.P., SAXE, SULLIVAN, WALLACH and GONZALEZ, JJ. Jay L.T. Breakstone, for Plaintiff-Respondent. Kathleen D. Foley, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Emily Goodman, J. and a jury), entered April 9, 2002, awarding plaintiff, inter alia, $100,000 for future medical expenses and $348,000 for future pain and suffering, before structuring, unanimously affirmed, without costs.

 The record does not support defendant's claim that the trial court was biased.   Defendant's request for a comparative fault charge was properly denied for lack of evidence that plaintiff was negligent when he knelt down alongside a bed in defendant's motel and struck his knee on a metal bar hidden beneath the bedspread cover (see Perales v. City of New York, 274 A.D.2d 349, 711 N.Y.S.2d 9).   Furthermore, a subsequent injury charge (PJI3d 2:306 [2003] ) was properly given where, based on a vague reference to a subsequent “accident” in plaintiff's physical therapy records, defendant argued on summation that plaintiff was seeking to recover for a second, unrelated injury.   The awards for future medical expenses and future pain and suffering do not deviate materially from what is reasonable compensation for a knee injury that has required three arthroscopic surgeries to treat torn ligaments and cartilage damage, will require prescription pain killers, anti-inflammatory medication and a new unloader knee brace each year for the rest of plaintiff's 50-year life expectancy at a per-brace cost of $1200, and will likely require at least two knee replacements and associated physical therapy at a cost of $20,000 each (cf.  Calzado v. New York City Tr. Auth., 304 A.D.2d 385, 758 N.Y.S.2d 303;  Garcia v. Queens Surface Corp., 271 A.D.2d 277, 707 N.Y.S.2d 53).   We have considered defendant's other arguments and find them unavailing.