4 A.D.3d 158 (2004)

772 N.Y.S.2d 39

BARBARA GRANT et al., Appellants, v. CITY OF NEW YORK, Respondent.

Appellate Division of the Supreme Court of the State of New York, First Department.

February 17, 2004.

Barbara Grant slipped and fell on ice in a crosswalk, suffering a trimalleolar fracture and dislocation of her right ankle. As a result, she endured persistent pain and underwent two surgeries, including the insertion of a plate and screws, followed by months of physical therapy. Plaintiffs' board-certified orthopedist testified that Ms. Grant, who was 53 years old at the time of trial, would probably experience arthritic complications in the future, owing to cartilage damage in her ankle joint.

The jury's award for pain and suffering deviated materially from what is reasonable compensation under the circumstances (see Condor v City of New York, 292 A.D.2d 332 [2002], lv denied 98 N.Y.2d 607 [2002]; Yass v Liverman, 233 A.D.2d 110 [1996]). The award of $5,000 (after apportionment of liability) for past lost earnings and zero for future lost earnings was reasonable, given the facts of this case and the lack of medical proof to show that Ms. Grant was physically incapable of working following her recuperation. Her claim for future lost earnings additionally lacks merit in light of her stated intention to retire at 50, in 1999. The trial took place in January 2002, some eight years after the accident.

Plaintiffs' unrefuted testimony established that at least during the first traumatic year after the accident, Mr. Grant took over all the household chores for this family with five children, and had to assist his wife with her personal needs. The jury's award of no damages on his claim for loss of services was thus unreasonable. On the other hand, the testimony was too vague to substantiate his claim for loss of society.


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