STATE OF NEW YORK
SUPREME COURT: COUNTY OF CHAUTAUQUA
JOHN M. GREEN,
PAUL I. HESLINK,
THEODORE W. MATHEWS
MATLINK, a Partnership,
JOHNSON, MULLAN & BRUNDAGE, P.C.
(Byron Johnson, Esq. of
Counsel) for Plaintiff
QUINN, McGARRY & CAFFERY, P.C.
(Kenneth A. Patricia, Esq. of
Counsel) for Defendant
JOHN P. RICE, III, ESQ.
Attorney for Defendant
DECISION AND ORDER
Plaintiff moves for an order setting aside the verdict
of the jury rendered September 29, 1995 which awarded
plaintiff $9,880.00 for impairment of earning ability;
$10,000 for pain and suffering including loss of enjoyment
of life and medical expenses of $13,235.35. The jury fixed
the fault of defendants at 60% and the plaintiff at 40%.
Plaintiff is 32 years of age. The undisputed medical
testimony indicates plaintiff exhibits residual dysethesia
from an injury to the infra-patellar branch of the
saphenous nerve of his left leg, and, it is permanent.
However, once his fractures healed, plaintiff again
took up construction work and has lost little time from his
In JAKALOW VS JOSEPHINE CONSOLI, 175 AD2d 826, the
Appellate Division in the Second Department granted a
similar motion unless the defendants consented to increase
damages for pain and suffering from $12,000 to $50,000.
That approach is appropriate here.
The motion of plaintiff for a new trial on the issue
of damages is granted, unless defendant consents to
increase the damages for pain and suffering from $10,000 to
$40,000, for total damages of $63,115.35. Applying the 60%
liability of defendants will net plaintiff $37,869.21.
This is the DECISION and ORDER of this Court.
Dated: October , 1995
Mayville, New York
Supreme Court Justice
To all Counsel:
Please take notice that a DECISION and ORDER of
which the within is a copy, is duly granted in the above
entitled action on the day of , 1995, and
duly entered in the office of the Clerk of the County of
Chautauqua on November 3, 1995.