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Supreme Court, Appellate Division, Fourth Department, New York

Aversa v. Bartlett
New York
783 N.Y.S.2d 174 (N.Y. 2004)


Case Details
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Summary:   Plaintiff was bitten in the face by Defendant's dog.  Plaintiff sustained injuries including lacerations, bruising and swelling of the face, tearing of the left eyelid, nasal fracture and blockage, and double vision.  A jury awarded Plaintiff $100,000 for past pain and suffering and $200,000 for future pain and suffering.  Defendant appealed on the basis that the $200,000 award of damages for future pain and suffering deviates substantially from what would be reasonable compensation.  The Appellate Division of the Supreme Court found the evidence did not support a finding of $200,000 for future pain and suffering and plaintiff stipulated to $75,000 for future pain and suffering. 

Judge Pine, Hurlbutt, Scudder, Kehoe, Lawton delivered the opinion of the court.


Opinion of the Court:

In this action by plaintiff to recover for personal injuries sustained by her as a result of being bitten in the face by defendant's dog, defendant contends that the jury's award of $100,000 for past pain and suffering and $200,000 for future pain and suffering deviates materially from what would be reasonable compensation (see CPLR 5501[c]; see generally Yondt v. Boulevard Mall Co., 306 A.D.2d 884, 885, 762 N.Y.S.2d 734; Barrowman v. Niagara Mohawk Power Corp., 252 A.D.2d 946, 948, 675 N.Y.S.2d 734, lv. denied 92 N.Y.2d 817, 684 N.Y.S.2d 488, 707 N.E.2d 443). We conclude that the award for past pain and suffering is warranted by the evidence of plaintiff's condition between the time of the bite and trial, particularly including the lacerations, bruising and swelling of plaintiff's face, the tear of the left eyelid and plaintiff's temporary inability to open the left eye, the nasal fracture and blockage and resultant temporary breathing difficulties, the sporadic and temporary double vision, and the procedures undergone by plaintiff to rectify the foregoing conditions.

We agree with defendant, however, that the award of $200,000 for future pain and suffering deviates materially from what would be reasonable compensation (see Beeley v. Spencer [Appeal No. 5], 309 A.D.2d 1303, 1306, 765 N.Y.S.2d 725; Dombrowski v. Moore, 299 A.D.2d 949, 952, 752 N.Y.S.2d 183; see generally Hafner v. County of Onondaga [Appeal No. 2], 278 A.D.2d 799, 723 N.Y.S.2d 574). In our view, an award of $75,000 for plaintiff's future pain and suffering is the maximum amount that the jury could have awarded as a matter of law based on the evidence at trial (see Beeley, 309 A.D.2d at 1306, 765 N.Y.S.2d 725). That evidence establishes only that plaintiff suffers from persistent numbness in her cheek and a "slight" or "mild" asymmetry in the size of the openings of her eyes, which causes her left eye (which opens wider) to "dry out more." We therefore modify the judgment by granting defendant's motion in part and setting aside the award of damages for future pain and suffering, and we grant a new trial on that element of damages only unless plaintiff, within 20 days of service of a copy of the order of this Court with notice of entry, stipulates to reduce the award of damages for future pain and suffering to $75,000, in which event the judgment is modified accordingly.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by granting the motion in part and setting aside the award of damages for future pain and suffering and as modified the judgment is affirmed without costs, and a new trial is granted on that element of damages only unless plaintiff, within 20 days of service of a copy of the order of this Court with notice of entry, stipulates to reduce the award of damages for future pain and suffering to $75,000, in which event the judgment is modified accordingly and as modified the judgment is affirmed without costs.

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