STATE OF NEW YORK

SUPREME COURT: COUNTY OF CHAUTAUQUA

_____________________________________________

DANIEL F. SCALISE

and JACLIN J. SCALISE

Plaintiffs,

vs Index No. H-4182

CHAUTAUQUA COUNTY AGRICULTURE

& FAIR ASSOCIATION; JOHN

RICHARDSON; AND J & J AMUSEMENTS

Defendants.

_____________________________________________

MISERENDINO, CELNIKER,

SEEGERT & ESTOFF, P.C.

(Joseph G. Krenitsky, Esq.

of Counsel) for Plaintiffs

O'SHEA, REYNOLDS & CUMMINGS

(Nelson E. Schule, Jr., Esq.

of Counsel) for Defendants

DECISION AND ORDER

February, 1996

GERACE, J.

Plaintiff moves to set aside the verdict and direct

judgment in favor of plaintiffs in an amount to be deemed

just and fair compensation, or, order a new trial on

grounds that the verdict was wholly and completely

inadequate and insufficient.

The standard of review to be applied by trial courts

to the damage aspect of a jury verdict is the standard of

"deviated materially from what would be reasonable

compensation." See PruntyvYMCAofLockport,Inc., 206

A.D.2d 911, 616 NYS2d 117 (4th Dept. 1994); Fitzgibbonsv

NewYorkStateUniversityConstructionFund, 177 AD2d 1033,

578 NYS 2d 317 (4th Dept. 1991).

The motion for a new trial on the grounds the verdict

was inadequate is granted, unless the defendant is willing

to pay and plaintiffs are willing to accept $15,000, plus

the medical expenses of $1,596.05 in settlement of all

claims.

The jury awarded nothing for future pain and suffering

in spite of the testimony of plaintiff's physician that

she would have continuing problems with her left foot and

in all probability would require future medical care and

treatment along the lines of prescribed medication,

cortisone injections and possibly the use of orthotics.

Defendant's examining physician testified that as of

November 1992, he observed plaintiff's left leg had

atrophied 1/2 inch due to her injury, and that her symptoms

would contribute to her atrophy, but that no further

medical care and treatment was indicated. While he felt

she had recovered from the injury, he did testify he did

not believe plaintiff was a "malingerer".

There was a question whether she sustained a fracture.

Radiologists did diagnose a fracture; the doctors thought

otherwise, but, there was no question that she sustained a

crushing type injury and that the foot required a cast for

over a month and her left leg, due to her symptoms, had

atrophied.

The fact that, except for some prescriptions and over

the counter medications, and Dr. Scholls over-the-counter

shoe inserts, plaintiff admitted she rejected cortisone and

professionally fitted orthotics, no doubt influenced the

jury, but, rejection of a steroid was not unreasonable; her

rejection of fitted orthotics was.

The signing, filing, and mailing of a copy by the

Court of this Decision and Order to all Counsel shall not

constitute notice of entry required by CPLR 2220. Counsel

are not relieved from the applicable provisions of that

section respecting notice of entry.

THIS IS THE DECISION AND ORDER OF THIS COURT.

Dated: February , 1996

Mayville, New York

_________________________________

JOSEPH GERACE

Supreme Court Justice

To all Counsel:

Please take notice that a DECISION and ORDER of

which the within is a copy, was duly granted in the above

entitled action on the day of , 1996, and

filed by the Court in the office of the Clerk of the County

of Chautauqua on the same date.