STYLIANOU v. CALABRESE

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

Spyros STYLIANOU, Respondent, v. Joseph CALABRESE, Appellant.

Decided: September 30, 2002

FRED T. SANTUCCI, J.P., ROBERT W. SCHMIDT, SANDRA L. TOWNES and BARRY A. COZIER, JJ. Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum] of counsel), for appellant. Queller, Fisher, Dienst, Serrins, Washor & Kool, LLP (Ephrem Wertenteil, New York, NY, of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant appeals from a judgment of the Supreme Court, Queens County (Golia, J.), entered May 21, 2001, which, upon a jury verdict awarding the plaintiff the sums of $200,000 for past pain and suffering, $350,000 for future pain and suffering, and $20,000 for the cost of future surgery, is in favor of the plaintiff and against him.

ORDERED that the judgment is modified, on the law, the facts, and as an exercise of discretion, by deleting the provision thereof awarding the plaintiff the sum of $20,000 for the cost of future surgery and substituting therefor a provision dismissing so much of the complaint as sought to recover damages for the cost of future surgery;  as so modified, the judgment is affirmed, with costs to the plaintiff.

A jury verdict should not be set aside as against the weight of the evidence unless the jury could not have reached its verdict on any fair interpretation of the evidence (see Lolik v. Big v. Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163;  White v. Rubinstein, 255 A.D.2d 378, 679 N.Y.S.2d 668;  Nicastro v. Park, 113 A.D.2d 129, 134, 495 N.Y.S.2d 184).   Great deference is accorded to the fact-finding function of the jury, and determinations regarding the credibility of witnesses are for the fact-finders, who had the opportunity to see and hear the witnesses (see Darmetta v. Ginsburg, 256 A.D.2d 498, 682 N.Y.S.2d 407;  Corcoran v. People's Ambulette Serv., 237 A.D.2d 402, 656 N.Y.S.2d 877).

A review of the evidence in this case demonstrates that a fair interpretation of the evidence supports the jury determination that the plaintiff's injuries were causally related to the accident, and that such determination should not be set aside (see Nicastro v. Park, supra).

While the amount of damages to be awarded for personal injuries is primarily a question for the jury (see Schare v. Welsbach Elec. Corp., 138 A.D.2d 477, 478, 526 N.Y.S.2d 25), the award may be set aside and a new trial ordered when it deviates materially from what would be reasonable compensation (see CPLR 5501[c];  Pellegrino v. Felici, 278 A.D.2d 212, 717 N.Y.S.2d 251;  Walsh v. Kings Plaza Replacement Serv., 239 A.D.2d 408, 658 N.Y.S.2d 345).   Considering the nature and extent of the injuries sustained by the plaintiff, the award of damages for past and future pain and suffering does not deviate from what would be reasonable compensation (see Jansen v. C. Raimondo & Son Constr. Corp., 293 A.D.2d 574, 741 N.Y.S.2d 71).

The trial court erred in permitting the plaintiff's treating physician to testify regarding future surgery.   Although the plaintiff's treating physician testified that the surgery he performed on the plaintiff's shoulder was successful, and that the shoulder was stable, he nonetheless indicated that the plaintiff would require a shoulder replacement in the future.   However, the plaintiff's physician failed to state a basis for such opinion and failed to indicate with any degree of certainty that the plaintiff would require future surgery.   Accordingly, the verdict as to the award for the cost of future surgery cannot stand, as it was based on testimony that was speculative and unsupported by competent evidence (see generally Jansen v. C. Raimondo & Son Constr. Corp., supra;  Sanvenero v. Cleary, 225 A.D.2d 755, 640 N.Y.S.2d 174).

The defendant's remaining contentions are unpreserved for appellate review, and in any event, are without merit.

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