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

Maria CLAUDIO, Plaintiff-Appellant, v. The CITY OF NEW YORK, Defendant-Respondent.

Decided: February 22, 2001

SULLIVAN, P.J., TOM, LERNER, BUCKLEY and FRIEDMAN, JJ. Cheryl R. Eisberg Moin, attorney for the Plaintiff-Appellant. Helen P. Brown, attorney for the Defendant-Respondent.

Judgment, Supreme Court, New York County (Nelson Cosgrove, J.), entered January 5, 2000, upon a jury verdict, awarding plaintiff damages for past pain and suffering in the principal amount of $17,500 and for future pain and suffering in the principal amount of $6,000, unanimously modified, on the facts, to vacate the awards for past and future pain and suffering, and to direct a new trial on the issues of such damages only, and otherwise affirmed, without costs, unless defendant, within 30 days of service of a copy of this order with notice of entry, stipulates to increase the award for past pain and suffering to $75,000, and for future pain and suffering to $40,000, and to entry of an amended judgment in accordance therewith.

Unrefuted medical proof offered by plaintiff at trial established that she suffered a fracture of the distal radius of her nondominant left wrist, and injury to her shoulder and ankle when she fell after stepping into a sidewalk hole.   Plaintiff's arm was in a cast for six weeks, she wore an arm sling to support her shoulder, received multiple cortisone shots in her shoulder and hand to alleviate pain, received physical therapy to rehabilitate her injuries and still wore a removable hand cast to stabilize her thumb at the time of the trial of this matter.   Plaintiff's orthopedic expert testified that plaintiff would experience continued pain associated with DeQuervain's Syndrome and recommended surgery for her injured hand to stem the pain, however plaintiff, as of the time of trial, had elected against surgery in light of the associated risks.   Under the circumstances, we find that the jury's award deviated materially from what is reasonable compensation under the circumstances (see, CPLR 5501[c]), and that an increase in the awards for past and future pain and suffering to the extent indicated is warranted.