Barnaby v Gold Constr. Corp. of Rockland (2008 NY Slip Op 51380(U))

Barnaby v Gold Constr. Corp. of Rockland

2008 NY Slip Op 51380(U) [20 Misc 3d 128(A)]

Decided on July 10, 2008

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Bansyman Barnaby and Majorie Barnaby, Plaintiffs-Appellants,

against

Gold Construction Corp. of Rockland, Defendant-Respondent.

Plaintiffs appeal from a judgment of the Civil Court of the City of New York, Bronx County (Francis M. Alessandro, J.), entered August 1, 2005, after a nonjury trial on damages only, which limited plaintiff Bansyman Barnaby's recovery for personal injury damages to the unitemized sum of $50,000 and dismissed plaintiff Marjorie Bansyman's loss of consortium claim.

Judgment (Francis M. Alessandro, J.), entered August 1, 2005, reversed, without costs, and matter remanded for a new trial on damages before another Judge.

Plaintiff was awarded summary judgment on the liability aspect of his Labor Law §§ 240 and 241(6) claims arising from injuries sustained in a work-related accident. The uncontradicted evidence presented at the 2002 trial on damages showed that plaintiff's substantial injuries, including a fractured left ankle and torn meniscus of his left knee, have required three surgeries and have prevented him from returning to work as an electrician at any time after the 1994 accident. The evidence also established that as a result of his injuries, plaintiff remains largely confined to his home, where he is unable to do any household chores, and that plaintiff continues to attend physical therapy twice a week and receives ongoing pain management therapy. The trial court limited plaintiff's recovery to the principal sum of $50,000 without explaining the basis for its award. The award was not apportioned among plaintiff's claims for past and future pain and suffering, and past and future lost earnings. The court also failed to set forth any reason for the denial of plaintiff's wife loss of consortium claim. While appellate review of an award of damages pursuant to CPLR 5501(c) is not feasible in advance of a properly itemized award, we find, based upon the nature of the injured plaintiff's injuries, his course of treatment and prognosis as set forth in the record, that the damage award of $50,000 to plaintiff and the outright denial of plaintiff's wife's derivative claim deviated materially from what is reasonable compensation (compare Lowenstein v Normandy Group, LLC, AD3d , [*2]2008 NY Slip Op 4439 [2008]; Sienicki v 760 West End Avenue Owners, Inc., 23 AD3d 271 [2005]; Uriondo v Timerline Camplands, Inc., 19 AD3d 282 [2005], lv denied 6 NY3d 704 [2006]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 10, 2008