Opinion
February 10, 1999
Appeal from Judgment of Supreme Court, Erie County, Sedita, Jr., J. — Negligence.
PRESENT: GREEN, J. P., PINE, WISNER AND PIGOTT, JR., JJ.
Judgment unanimously modified on the law and as modified affirmed without costs and new trial granted on damages for future pain and suffering only unless defendant, within 20 days of service of a copy of the order of this Court with notice of entry stipulates to an award of damages for future pain and suffering of $100,000, in which event the judgment is modified accordingly and as modified affirmed without costs in accordance with the following Memorandum: Plaintiff commenced this action to recover damages for personal injuries he sustained when a form used in the construction of a mausoleum column collapsed and fell on him. The jury awarded plaintiff $6,500 for past medical expenses, $50,000 for past loss of earnings, $50,000 for past pain and suffering, $6,000 for future medical expenses and $150,000 for future loss of earnings, but made no award for future pain and suffering.
The verdict insofar as it awards no damages for future pain and suffering is contrary to the weight of the evidence ( see, Diglio v. Gray Dorchester Assocs., ___ A.D.2d ___ [decided Nov. 13, 1998], Albrecht v. Bedard, ___ A.D.2d ___ [decided Nov. 13, 1998]). "Because the jury awarded past damages, it must have concluded that plaintiff was injured as a result of the accident" ( Grasso v. American Brass Co., 212 A.D.2d 994, 995). By awarding damages for future medical expenses and loss of earnings, the jury must have also accepted the testimony of plaintiff's medical witnesses that plaintiff is partially disabled and in need of future medical treatment as the result of injuries that continue to cause pain and limit his physical activity. Thus, the determination that plaintiff has no compensable future pain and suffering is "inconsistent and otherwise against the weight of the evidence" ( Fitzgibbons v. New York State Univ. Constr. Fund, 177 A.D.2d 1033, 1034). We therefore modify the judgment and grant a new trial on damages for future pain and suffering only unless defendant, within 20 days of service of a copy of the order of this Court with notice of entry, stipulates to an award of damages for future pain and suffering of $100,000, in which event the judgment is modified accordingly.
Supreme Court erred in precluding plaintiff from testifying regarding a statement made to him by a deceased co-worker prior to the accident ( see, Stern v. Waldbaum, Inc., 234 A.D.2d 534, 535), but "we are satisfied that the result would have been the same if the evidence had not been improperly [excluded]" ( Barracato v. Camp Bauman Buses, 217 A.D.2d 677, 678). Because the opening statements were not transcribed, we cannot review plaintiff's contention that defendant's attorney made improper statements during his opening statement ( see, Wilcox v. Morrow, 226 A.D.2d 1077). Finally, the allegedly improper conduct of defendant's attorney on summation "was not so egregious as to require reversal" ( Eschberger v. Consolidated Rail Corp., 174 A.D.2d 983, 984, lv denied 79 N.Y.2d 752, cert denied 503 U.S. 1011; cf., Clarke v. New York City Tr. Auth., 174 A.D.2d 268, 278).