LURKER v. PELLIKAAN

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

Ernst LURKER, et al., Plaintiffs-Appellants, v. Annette PELLIKAAN, et al., Defendants-Respondents.

Decided: November 22, 2005

SAXE, J.P., ELLERIN, WILLIAMS, CATTERSON, MALONE, JJ. The Breakstone Law Firm, Bellmore (Jay L.T. Breakstone of counsel), for appellants. Curtis, Vasile, Devine & McElhenny, Merrick (Roy W. Vasile of counsel), for respondents.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered August 20, 2004, which granted defendants' motion for a new trial on damages unless plaintiffs stipulated to decrease the jury's awards for past pain and suffering from $450,000 to $75,000, future pain and suffering over 15 years from $250,000 to $50,000, and loss of services from $50,000 to $25,000, unanimously modified, on the facts, to increase the amounts to which plaintiff must stipulate to avoid a new trial to $275,000 and $150,000 for past and future pain and suffering, respectively, and otherwise affirmed, without costs.

Plaintiff's right foot was run over by an SUV, causing him to sustain a Lisfranc fracture involving comminuted fractures of the second and third metatarsal, a widening of the space between the first and second metatarsal, and displacement of the first, third and fourth metatarsal.   Surgery, which involved a three-day hospitalization and a day visit six months later to remove the hardware, was successful.   Plaintiff was not ambulatory the first two months after the accident, experienced much pain the first six weeks after the surgery, during which time he underwent physical therapy two or three times a week, but was ambulating without aid within six months.   At the time of trial less than two years after the accident, the 67-year-old plaintiff was walking without a limp, and while he testified to continued pain and resulting loss of enjoyment of life, the only objective sequela of the injury is some numbness and neuropathy of the pad underneath the big toe, some enlargement of the foot due to calcification around the healed bone, and some decreased range of motion in the toes.   Under the circumstances, the damage awards, as reduced by the trial court, deviate materially from what is reasonable compensation to the extent indicated (CPLR 5501[c] ).