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

Elaine RIVERA, Plaintiff-Appellant, v. LINCOLN CENTER FOR THE PERFORMING ARTS, INC., Defendant-Respondent.

Decided: March 24, 2005

TOM, J.P., MAZZARELLI, ANDRIAS, FRIEDMAN, GONZALEZ, JJ. Alexander J. Wulwick, New York, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Grace Goodman of counsel), for respondent.

Order, Supreme Court, New York County (Christopher J. Burns, J.), entered on or about June 17, 2004, which, in an action for personal injuries sustained in a slip and fall on defendant's premises, insofar as appealed from, granted defendant's motion for a new trial on the issue of future pain and suffering unless plaintiff stipulated to reduce the jury's award therefor from $362,500 to $40,000, unanimously modified, on the law and the facts, to increase the amount to which plaintiff must stipulate in order to avoid a new trial on future pain and suffering to $200,000, and otherwise affirmed, without costs.

The trial court's remittitur is excessive to the extent indicated (CPLR 5501 [c] ).  Plaintiff sustained an ankle injury that did not satisfactorily respond to, inter alia, months of physical therapy, molded splints or AFOs, arthroscopic surgery, months of post-operative physical therapy, and steroid injections.   As a result, at the age of 25, plaintiff has already developed post-traumatic arthritis in her ankle that her treating physician testified, without contradiction, is permanent and will progressively worsen, causing increasing pain and lessening tolerance for walking and other activities.   To alleviate these symptoms, plaintiff will require physical therapy and steroid injections, will likely require major surgery to reconstruct her anterior talofibular ligament, and might also require further surgery to excise scarring from a meniscus lesion.   That plaintiff is gainfully employed and presently able to walk without assistance does not negate the ongoing and permanent nature of her injury.

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