Albanese v. PrzybylowiczAlbanese v. Przybylowicz
McCarthy, J. Appeal from an order of the Supreme Court (Aulisi, J.), entered March 18, 2013 in Fulton County, which granted plaintiff’s motion to set aside a verdict and ordered a new trial on the issue of damages.
Plaintiff’s vehicle was struck by a vehicle that was owned by defendant James D. Przybylowicz and was being operated by defendant Michael J. Przybylowicz. As a result of the accident, plaintiff suffered two fractures to his nondominant left hand—one to a bone in his middle finger and one to a bone in his palm—as well as neck strain and a hematoma to his shin.
Although the amount of damages awarded for personal injuries is a factual question for a jury to resolve, a court may set aside a jury award of damages when that award “deviates materially from what would be reasonable compensation” (
Here, it is undisputed that plaintiff fractured two bones in his left hand in the instant accident, entitling him to recover for past pain and suffering for all of the injuries that he suffered in the accident (see Vogel v Cichy, 53 AD3d at 880; Butcher v Rotterdam Sq. Mall, 268 AD2d 941, 941 [2000]; see also Schmidt v Meehan, 97 AD3d 940, 940 [2012]). The bruise on his shin and pain in his neck were basically healed within one month. For the fractures, plaintiff wore a cast for one month, then had his fingers buddy-taped together for a period of time. He returned to his physician’s office and participated in physical therapy over the course of approximately six months. The physician testified that plaintiff’s fractures healed in good position, he was able to fully straighten his finger and bend it almost fully to his palm, but he had some deformity and swelling within the finger that was permanent. The physician found a marked loss of motion in the middle finger and assigned a 50% schedule loss of use of that finger, although the physical therapy discharge
Plaintiff testified that he never previously injured his finger or sought treatment for it. Plaintiff’s medical record contained an entry that, while not entirely clear, indicated that plaintiff had prior problems with that finger. The records and X rays also indicated that plaintiff had degenerative changes that caused arthritis in that finger. The physician testified that this was trauma-induced arthritis, but also acknowledged that the level of degeneration could not have developed between the time of the instant accident and the time that the first X ray was taken. Considering this testimony, the jury could have disbelieved plaintiff’s testimony denying any prior injury or treatment to his left middle finger, and instead found that some or all of his difficulties were related to a prior injury or degenerative changes. If the jury felt that plaintiff was being untruthful regarding his medical history, and that his prior criminal conviction affected his credibility, the jury could have disbelieved plaintiff’s testimony regarding the amount of pain and the effects and limitations on his daily activities that he suffered as a result of the fractures (see Ciuffo v Mowery Constr., Inc., 107 AD3d at 1197-1198; Olmsted v Pizza Hut of Am., Inc., 81 AD3d at 1224). While an injured person can recover for the aggravation of a previously-dormant condition that causes that condition to become symptomatic (see Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]; Stram v Farrell, 223 AD2d 260, 265 [1996]), the jury could have determined, based on its credibility findings regarding plaintiff, that the injuries he sustained in the instant accident had resolved by the time of trial and he was no longer suffering from any new injury or aggravation of any previous injury as a result of this accident (see Latour v Hayner Hoyt Corp., 13 AD3d 1147, 1148-1149 [2004]; Molter v Gaffney, 273 AD2d 773, 775 [2000]; Teller v Anzano, 263 AD2d 647, 649 [1999]; compare Mihalko v Regnaiere, 36 AD3d at 985). Accordingly, a fair interpretation of the evidence would support the portion of the jury’s verdict that declined to award him anything for future pain and suffering, such that this determination does not deviate materially from what would be reasonable (see Olmsted v Pizza Hut of Am., Inc., 81 AD3d at 1224; Vogel v Cichy, 53 AD3d at 879; Teller v Anzano, 263 AD2d at 649; compare Marshall v Lomedico, 292 AD2d 669, 671 [2002]). On the other hand, the evidence does not support the jury’s
Peters, P.J., Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed, with costs.