Clotter v. New York City Transit Authority

McGuire, J.,

concurs in a separate memorandum as follows: The 46-year-old plaintiff sustained a ruptured quadriceps tendon and a small avulsion fracture of her right patella requiring hospitalization and surgery. I agree with the majority that the award of damages for past and future pain and suffering is excessive. However, in my view, a substantial additional reduction of the award is warranted. The award must not “deviate[ ] materially from what would be reasonable compensation” (CPLR 5501 [c]) and plaintiffs who suffered similar or more severe injuries have been awarded substantially less (see e.g. Orellano v 29 E. 37th St. Realty Corp., 4 AD3d 247 [1st Dept 2004], lv denied 4 NY3d 702 [2004] [$375,000 for each of past and future pain and suffering where 47-year-old plaintiff suffered comminuted fracture of tibia and fibula requiring several surgical procedures during two-month hospital stay and resulting in partial permanent disability]). Inexplicably, the majority cites Orellano in support of the reduced award it thinks appropriate.