From Casetext: Smarter Legal Research

Thomas v. 14 Rollins Street Realty Corp.

Appellate Division of the Supreme Court of New York, First Department
Jan 3, 2006
25 A.D.3d 317 (N.Y. App. Div. 2006)

Summary

increasing award of $100,000 for future pain and suffering to $250,000 where leg injuries resulted in some lasting pain and restrictions on activities involving repetitive rising and squatting.

Summary of this case from Smith v. Crown Lift Trucks

Opinion

7302.

January 3, 2006.

Judgment, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered on or about September 24, 2004, awarding plaintiff $550,000 for past pain and suffering and $250,000 for future pain and suffering, and bringing up for review a ruling at the close of plaintiff's evidence which, insofar as challenged, dismissed plaintiff's claims for past lost earnings and past medical expenses, unanimously modified, on the law, to reinstate plaintiff's claim for past lost medical expenses incurred for services rendered by his treating physician, Dr. Lent, the matter remanded for further proceedings with respect to such claim, and otherwise affirmed, without costs.

Gangadeen Associates, Richmond Hill (Michael L. Gangadeen of counsel), for appellant.

Harrington, Ocko Monk, LLP, White Plains (I. Paul Howansky of counsel), for respondent.

Before: Andrias, J.P., Sullivan, Williams, Gonzalez and Catterson, JJ., concur.


It appears to be the opinion of plaintiff's surgeons that six months after the accident requiring surgery for a bilateral patellar tendon rupture, plaintiff was able to "resume his full activities" and was otherwise "doing extremely well," and that while plaintiff still complained of some pain and buckling two years after the accident, and was not "going to return to where he was before," he was, from a clinical point of view, "doing great," with restrictions limited mainly to activities involving repetitive rising and squatting. In view of the foregoing, and mindful of the bilateral nature of the tears that, until repaired, left plaintiff completely unable to walk, the jury's award of $900,000 for past pain and suffering was properly reduced to $550,000, and its award of $100,000 for future pain and suffering was properly increased to $250,000 ( cf. Hoerner v. Chrysler Fin. Co., L.L.C., 21 AD3d 1254; Barlatier v. Rollins Leasing Corp., 292 AD2d 480; Alvarado v. City of New York, 287 AD2d 296; Gainey v. City of New York, 278 AD2d 102). The trial court properly precluded plaintiff's treating physician from testifying about the need for future knee replacement surgery, where such surgery was not mentioned in either plaintiff's bill of particulars or expert disclosure statement, or even in his physician's own records, and where defendants could have been expected to retain their own knee specialist to assess possible future knee surgery (CPLR 3101 [d] [1] [i]). Plaintiff's claim for past lost wages was properly dismissed at the close of his case for lack of evidence establishing an earnings history ( see Smith v. Temco Servs. Indus., 267 AD2d 176), as was his claim for past physical therapy expenses for lack of bills or other evidence thereof. However, the testimony by plaintiff's treating physician estimating the value of the surgery he performed was not speculative ( see Grinnell v. City of New York, 244 AD2d 171), and, accordingly, the claim therefor should have been submitted to the jury.


Summaries of

Thomas v. 14 Rollins Street Realty Corp.

Appellate Division of the Supreme Court of New York, First Department
Jan 3, 2006
25 A.D.3d 317 (N.Y. App. Div. 2006)

increasing award of $100,000 for future pain and suffering to $250,000 where leg injuries resulted in some lasting pain and restrictions on activities involving repetitive rising and squatting.

Summary of this case from Smith v. Crown Lift Trucks

increasing award of $100,000.00 for future pain and suffering to $250,000.00 for plaintiff who suffered leg injury, where plaintiff was largely able to fully resume his activities but suffered some lasting pain and restrictions on activities involving repetitive rising and squatting

Summary of this case from Owens v. Commonwealth Health Ctr
Case details for

Thomas v. 14 Rollins Street Realty Corp.

Case Details

Full title:DARNELL THOMAS, Appellant, v. 14 ROLLINS STREET REALTY CORP. et al.…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jan 3, 2006

Citations

25 A.D.3d 317 (N.Y. App. Div. 2006)
2006 N.Y. Slip Op. 8
807 N.Y.S.2d 56

Citing Cases

Floyd v. 1710 Realty, LLC

However, with respect to the damages portion of the trial, the Supreme Court erred in allowing the…

Yan Zhao v. United States

"Unsubstantiated testimony, without documentation, is insufficient to establish lost earnings." Lodato v.…