CRUZ v. Dana Edwards, et al., Defendants-Respondents.

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

Victor CRUZ, Plaintiff-Appellant-Respondent, v. MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, et al., Defendants-Respondents-Appellants, Dana Edwards, et al., Defendants-Respondents.

Decided: March 30, 1999

ELLERIN, P.J., NARDELLI, WILLIAMS and RUBIN, JJ. Donald Drew Goldberg, for Plaintiff-Appellant-Respondent. Lawrence A. Silver, for Defendants-Respondents-Appellants. Richard M. Zuckerman, for Defendants-Respondents.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered December 24, 1997, which granted defendants' motions to set aside the jury verdict in favor of plaintiff to the extent of directing a new trial on the issue of damages unless plaintiff stipulates to reduce the awards for future pain and suffering from $1,875,000 to $400,000 and for past pain and suffering from $375,000 to $200,000, and setting aside the $70,000 award for future medical expenses as a matter of law, unanimously modified, on the facts, to reinstate the jury award for past pain and suffering, and to provide for a new trial on the issue of damages for future pain and suffering only unless defendants stipulate, within 30 days from the date of this order, to an award for future pain and suffering of $650,000, and otherwise affirmed, without costs.

Plaintiff, 30 years old at the time of the subject injury, sustained in 1998, has undergone three arthroscopic surgical procedures to his knee, continues to suffer significant deterioration of knee cartilage and pain, and walks with a limp.   Further arthroscopic surgery will not be beneficial and knee replacement surgery may be warranted in the future.   On this record, and in consideration of the many years between the injury and the verdict, we find the trial court should not have reduced the jury verdict of $375,000 for past pain and suffering.   We further find that, in light of plaintiff's life expectancy, the trial court's reduction of the jury verdict for future pain and suffering was inordinately large (see, CPLR 5501[c] ), and modify accordingly.

We do not have jurisdiction to review the trial rulings challenged by plaintiff on this appeal, given that such rulings are not incorporated in the order appealed from and that plaintiff has not moved for a new trial.

MEMORANDUM DECISION.