772 N.Y.S.2d 659 | N.Y. App. Div. | 2004
Order, Supreme Court, Bronx County (Stanley Green, J.), entered December 2, 2002, which, after a jury trial resulting in a verdict awarding plaintiff laborer $2.5 million and $3 million for past and future pain and suffering, respectively, $500,000 for
We agree with the trial court that the awards for past and future pain and suffering were excessive. In our view, however, for a comminuted fracture of the tibia and fibula that required several surgical procedures during a two-month hospital stay and extensive physical therapy thereafter, and resulted in a partial permanent disability to a 47-year-old man, the sum of $375,000 for each of past and future pain and suffering is a more appropriate award (see Brownell v City of New York, 277 AD2d 31 [2000], lv denied 96 NY2d 712 [2001]). Plaintiffs testimony as to his past earnings was unsubstantiated by tax returns, W-2 forms or other relevant documents, and thus insufficient as a matter of law to show any loss of earnings (see Martinez v Royal-Pak Sys., 300 AD2d 198 [2002]). We have considered the parties’ other arguments for affirmative relief and find them unavailing. Concur—Nardelli, J.E, Sullivan, Rosenberger, Lerner and Gonzalez, JJ.