                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 4, 2014                   518120
________________________________

DAVID VINCENT et al.,
                    Appellants-
                    Respondents,
      v

ANGELO T. LANDI, Individually               MEMORANDUM AND ORDER
   and Doing Business as
   ANGELO'S STEAK AND SEAFOOD
   RESTAURANT,
                    Respondent-
                    Appellant,
                    et al.,
                    Defendant.
________________________________


Calendar Date:   October 8, 2014

Before:   Peters, P.J., Lahtinen, Garry, Rose and Lynch, JJ.

                             __________


      Fischer, Bessette, Muldowney & Hunter, LLP, Malone (John J.
Muldowney of counsel), for appellants-respondents.

      FitzGerald Morris Baker Firth, PC, Glens Falls (William A.
Scott of counsel), for respondent-appellant.

                             __________


Garry, J.

      Cross appeals from an order of the Supreme Court (Demarest,
J.), entered February 22, 2013 in Franklin County, which denied
cross motions by plaintiffs and defendant Angelo T. Landi to set
aside a verdict in favor of plaintiffs.

      In January 2007, plaintiff David Vincent (hereinafter
plaintiff) fractured his ankle when he fell on black ice on a
                              -2-                518120

walkway at Angelo's Steak and Seafood Restaurant, a business
owned and operated by defendant Angelo T. Landi (hereinafter
defendant) in the Town of Potsdam, St. Lawrence County.
Plaintiff and his wife, derivatively, commenced this negligence
action against defendant and the owner of the premises.1
Following a trial, the jury determined that defendant was
negligent in maintaining the premises and awarded plaintiff
$15,000 as damages for past pain and suffering and $37,526 for
past lost business profits, but made no award for future pain and
suffering or future lost profits. Following entry of judgment,
plaintiffs moved to set aside the jury verdict and for a new
trial on the issue of damages, and defendant moved to set aside
the verdict. Supreme Court denied the motions. Plaintiffs and
defendant cross-appeal from the order denying their motions.

      Defendant contends that his motion to set aside the verdict
should have been granted because plaintiffs failed to satisfy
their burden of proof as to notice. Plaintiffs respond that
constructive notice of the icy walkway can be imputed to
defendant because the evidence established that he had actual
knowledge of an unsafe, recurring condition and failed to take
corrective action (see Black v Kohl's Dept. Stores, Inc., 80 AD3d
958, 960 [2011]; Bush v Mechanicville Warehouse Corp., 69 AD3d
1207, 1208-1209 [2010]; see generally Gordon v American Museum of
Natural History, 67 NY2d 836, 837-838 [1986]). The testimony
established that the weather on the day of the accident was
clear, cold and sunny. Snow had fallen the night before, and
defendant testified that he shoveled, sanded and salted the
walkway in front of the restaurant sometime before noon.
Plaintiff and his wife testified that they saw no ice on the
walkway when they arrived at the restaurant at about 4:00 in the
afternoon, but that by the time they left an hour and a half or
two hours later, black ice had formed on it, causing plaintiff to
slip and fall.



    1
        The matter was previously before this Court upon
defendant's appeal from the denial of his motion for summary
judgment dismissing the complaint against him (101 AD3d 1565
[2012]).
                              -3-                518120

      The walkway ran along the front of the restaurant, just
below the projecting edge of the sloped, south-facing roof.
Defendant testified that he was aware that winter sunlight often
melted snow on this roof, causing water to drip from the eaves
onto the walkway below, where it would collect and freeze when
temperatures dropped later in the day. He confirmed that this
condition recurred on a regular basis and that, as a result, he
had instructed his employees to check the walkway for ice and to
apply sand and salt when necessary. He testified that he had
installed an eight-foot-long gutter over the restaurant door to
protect it from water running off the roof, but had chosen not to
install similar gutters over the walkway. Finally, he stated
that he saw snow on the roof on the morning of the accident and
knew from his previous experience that this could melt, causing
water to drip onto the walkway and later freeze.

      A waitress employed by defendant testified that she was
aware that meltwater from the roof could create icy conditions
and that she had previously seen ice on the walkway that had
formed in this fashion. She stated that she arrived at work at
about 3:00 p.m. on the day of the accident and saw water running
off the roof onto the walkway in the area where plaintiff later
fell. She further testified that she assisted plaintiff after
the accident, and that she saw black ice on the walkway in the
area where he was lying, which she described as "slippery."
Viewing this evidence in the light most favorable to plaintiffs,
we find a valid line of reasoning and permissible inferences that
could have led a rational jury to conclude that defendant had
actual knowledge of an unsafe, recurring condition (see Zelaya v
Breger, 43 AD3d 437, 439 [2007]; Pugliese v D'Estrada, 259 AD2d
743, 744 [1999]; see also 101 AD3d 1565, 1567 [2012]; Knight v
Sawyer, 306 AD2d 849, 849 [2003]; Padula v Big V Supermarkets,
173 AD2d 1094, 1096 [1991]). As to defendant's further
contention that the verdict was against the weight of the
evidence, we cannot say that the evidence so preponderated in his
favor that the jury could not have reached its verdict based on
any fair interpretation of the evidence (see Maurer v Tops Mkts.,
LLC, 70 AD3d 1504, 1506 [2010]; see also Lolik v Big V
Supermarkets, 86 NY2d 744, 746 [1995]; Winter v Stewart's Shops
Corp., 55 AD3d 1075, 1077 [2008]).
                              -4-                518120

      Next, plaintiffs contend that Supreme Court should have
granted their motion to set aside the verdict and directed a new
trial on the issue of damages. An award of damages for pain and
suffering may be set aside on the ground of inadequacy "when it
deviates materially from reasonable compensation for the injury
sustained" (Sherry v North Colonie Cent. School Dist., 39 AD3d
986, 990 [2007]; see CPLR 5501 [c]; Hensley v Lawrence, 40 AD3d
1375, 1376 [2007]). Whether such an award is reasonable is
determined by analyzing comparable cases, taking into account
"the nature, extent and permanency of the injuries, the extent of
past, present and future pain and the long-term effects of the
injury" (Nolan v Union Coll. Trust of Schenectady, N.Y., 51 AD3d
1253, 1256 [2008], lv denied 11 NY3d 705 [2008]; accord
Skelly-Hand v Lizardi, 111 AD3d 1187, 1190 [2013]). Deference is
accorded to the jury's damage assessment and to the trial court's
decision on a motion to set aside the verdict (see Ciuffo v
Mowery Constr., Inc., 107 AD3d 1195, 1198 [2013]; Felitti v
Daughriety, 12 AD3d 909, 910 [2004]).

      Plaintiff sustained a spiral fracture of the left distal
fibula with joint incongruency, described by his treating
orthopedic surgeon as a "big, big gap" in the ankle joint where
the leg bones had separated from those of the foot and supporting
ligaments had been torn. The injury required open reduction
surgery and internal fixation with a plate and seven screws.
Plaintiff initially required prescription pain medication, wore a
fracture boot with instructions to put no weight on his ankle and
used a walker and, later, a cane. Six weeks after the accident,
the surgeon instructed plaintiff to begin putting weight on his
ankle. The surgeon testified that he continued to see plaintiff
at frequent intervals during 2007 and 2008, that the fracture and
surgical wound healed uneventfully, and that plaintiff's pain
improved at first, but then began to worsen. By November 2007,
plaintiff was experiencing swelling, limited range of motion and
increased pain, especially following certain activities such as
walking on uneven ground. The surgeon diagnosed progressive
posttraumatic arthritis, a chronic condition that he opined was
caused by the accident. During 2008, according to the medical
evidence, plaintiff continued to report mild or moderate ankle
pain that intensified to more severe levels following
overexertion; his surgeon instructed him to avoid activities that
                               -5-                518120

caused pain and administered several cortisone injections into
the ankle joint, but ultimately discontinued these injections
because they provided only temporary relief. At the time of
plaintiff's final visit to his surgeon in December 2008, his pain
had improved somewhat, stabilizing at a level described as 3 on a
scale of 10. The surgeon testified that no further medical
treatment was available at that time; he advised plaintiff to
continue to avoid painful activities, and to return if his
condition deteriorated.2

      Plaintiff, who owned and operated a dairy farm, testified
that he was able to increase his activities gradually following
the accident, as medically directed, but that he continued to
experience mild to moderate pain that worsened during daily
activities and became "excruciating" upon overexertion. He
followed medical instructions to avoid activities that caused
pain to the extent that he was able to do so, but his farm
responsibilities sometimes required him to engage in activities
that increased his pain, such as walking on soft, uneven pasture
surfaces. At the time of trial, almost six years after the
accident, plaintiff testified that he continued to suffer daily
pain that became worse following overexertion, and that he had
never been able to resume certain farm tasks that he had
performed before the injury, such as milking cows. He had also
been forced to discontinue former recreational activities,
including bowling and hunting.

      The surgeon opined that plaintiff's testimony was
consistent with the nature of his injury, stating that his
posttraumatic arthritis was permanent and would likely cause pain
and limit plaintiff's activities for the rest of his life. Based
upon this evidence and our review of comparable damage awards for
past pain and suffering involving ankle fractures that required
surgery, we find that the award of $15,000 deviates materially
from reasonable compensation (see Sherry v North Colonie Cent.
School Dist., 39 AD3d at 990-991 [$15,500 was "woefully
inadequate" for trimalleolar ankle fracture requiring surgery];


     2
        Plaintiff was treated by this surgeon on several
occasions in 2010 and 2011 for an unrelated condition.
                              -6-                518120

Ordway v Columbia County Agric. Socy., 273 AD2d 635, 636-637
[2000] [award of no damages was unreasonable for bimalleolar
ankle fracture dislocation requiring two surgeries]; Carlino v
County of Albany, 178 AD2d 772, 773-774 [1991] [$50,000 not
excessive for severe ankle fracture requiring surgical correction
with residual pain and resulting limitations on activities six
years later]; see also Sanchez v Morrisania II Assoc., 63 AD3d
605, 605 [2009] [$100,000 was inadequate for torn rotator cuff
and fractured ankle that healed without surgery]; Ruiz v New York
City Tr. Auth., 44 AD3d 331, 332 [2007] [award reduced to
$100,000 for fractured ankle that required open reduction and
fixation]; Hughes v Webb, 40 AD3d 1035, 1037-1038 [2007] [$22,500
was inadequate for tri-plane fracture of the distal tibia
requiring open reduction and fixation]; Brandwein v New York City
Tr. Auth., 14 AD3d 396, 397 [2005] [award of $30,000 increased to
$60,000 for ankle fracture that did not require surgery]). Based
upon our consideration of the damage awards in these cases, we
find that a new trial is warranted on this issue unless defendant
stipulates to an award of $75,000 for past pain and suffering
(see Vogel v Cichy, 53 AD3d 877, 880 [2008]).

      We further conclude that the award of no damages for future
pain and suffering was inadequate, as there was no evidence from
which the jury could have found that plaintiff's condition would
improve such that his pain would be completely alleviated
(compare Britvan v Plaza at Latham, 266 AD2d 799, 800-801
[1999]). Plaintiff and the surgeon both testified that the
reason that plaintiff ceased his related medical treatment after
December 2008 was not that he had fully recovered, but that no
further medical treatment was available; no medical evidence was
introduced to refute the expert medical opinion that plaintiff's
condition was permanent and that he would continue to suffer some
level of pain and restriction. The evidence so preponderated in
plaintiffs' favor that this aspect of the verdict could not have
been based upon "any fair interpretation of the evidence" (Lolik
v Big V Supermarkets, 86 NY2d at 746 [internal quotation marks
and citation omitted]; see Hammer v 1111 Ave. K, Inc., 115 AD3d
803, 804 [2014] [$140,000 for future pain and suffering
inadequate for dislocated trimalleolar fracture where the
plaintiff experienced daily pain and was at risk of developing
posttraumatic arthritis]; Grinberg v C&L Contr. Corp., 107 AD3d
                              -7-                518120

491, 492 [2013] [$35,000 was inadequate for a plaintiff who
developed permanent arthritis following ankle and leg fractures];
Ruiz v New York City Tr. Auth., 44 AD3d at 332 [$750,000 reduced
to $200,000 for ankle injury that caused few limitations and
occasional pain treated with over-the-counter medication]; Rivera
v Lincoln Ctr. for Performing Arts, Inc., 16 AD3d 274, 274-275
[2005] [$40,000 was inadequate for posttraumatic arthritis
following ankle injury]; see also Simeon v Urrey, 278 AD2d 624,
625 [2000] [no award of future pain and suffering damages was
inadequate where a plaintiff suffered progressive arthritis,
permanent weakness and pain after strenuous exercise following
arm fracture]). Upon our review of these cases, the evidence and
plaintiff's estimated life expectancy of 28.2 years at the time
of trial, we find that an award of $100,000 for future pain and
suffering would be reasonable.

      The damage awards for lost profits are likewise unsupported
by any fair interpretation of the evidence. While an injured
plaintiff who owns or operates a business may not recover lost
profits that were primarily earned through the labor of others or
the employment of capital, he or she may recover lost profits
that directly result from injuries that prevent the plaintiff
from contributing his or her skills, talents or abilities to the
business (see Steitz v Gifford, 280 NY 15, 20 [1939]; Behrens v
Metropolitan Opera Assn., Inc., 18 AD3d 47, 50 [2005]; PJI
2:295). The amount of such an award is properly based upon an
objective inquiry that the plaintiff must prove "with reasonable
certainty" (Tassone v Mid-Valley Oil Co., 5 AD3d 931, 932 [2004],
lv denied 3 NY3d 608 [2004]; accord Petrilli v Federated Dept.
Stores, Inc., 40 AD3d 1339, 1341-1342 [2007]; see also Kyme v
Pantuosco, 35 Misc 3d 1233[A], 2012 NY Slip Op 50984[U], *4 [Sup
Ct, Albany County 2012]). Here, plaintiff testified that he
owned and operated the farm on a 50-50 basis with his brother
until 2012, and thereafter owned 100% of the business. He
testified that he contributed his own labor to the farm business,
that his responsibilities had included daily milking chores
before the accident, and that severe pain caused by his injuries
prevented him from resuming this task thereafter. For this
reason, he hired an additional worker in 2007 to take over his
daily milking, still employed this worker in this capacity at the
time of trial, and expected the need for her services to
                              -8-                  518120

continue. Plaintiffs submitted tax and    business records
establishing that the farm had employed   four workers before the
accident and had added a fifth employee   shortly thereafter, at a
total cost of $108,035 between 2007 and   2011.

      The fifth employee testified that she was hired to milk the
cows in 2007 because plaintiff could no longer do so, and that
she still worked in that capacity. She and other witnesses
confirmed that they had seen plaintiff attempt to milk cows after
the accident and that pain had prevented him from doing so.
Supreme Court took judicial notice of actuarial tables indicating
that plaintiff had a life expectancy of 28.2 years at the time of
trial and a remaining working life of 8.7 years. This evidence
satisfied plaintiffs' burden of proving with reasonable certainty
that the cost of hiring this employee was a direct result of
plaintiff's injuries. It further demonstrated that he had lost
$54,017.50 – half of the total cost of her employment through
2011, while the farm was jointly owned – as past lost profits,
and that he would continue to lose profits for this reason on a
100% basis from 2012, when he assumed sole ownership, through the
remainder of his working life (see Duff v Mariani, 248 AD2d 905,
907 [1998]). The jury's award of damages for past lost profits
reveals that it accepted plaintiffs' proof that plaintiff's
injuries prevented him from contributing his labor to the farm
business and resulted in lost profits. The amount of the award,
however – less than $54,017.50 in past lost profits and nothing
for future lost profits – is inconsistent with this determination
and with any fair interpretation of the evidence, as there was no
evidence calling the accuracy of plaintiffs' proof into question
or suggesting that plaintiff's condition had improved or was
expected to improve such that the employment of the fifth worker
would become unnecessary (see Cochetti v Gralow, 192 AD2d 974,
975 [1993]; compare Vukovich v 1345 Fee LLC, 72 AD3d 496, 497
[2010]). Contrary to defendant's contention, the fact that the
farm's overall profits increased in the years following
plaintiff's injury does not foreclose recovery, as the amount of
this increase was lessened by the cost of employing the
additional worker (see Behrens v Metropolitan Opera Assn., Inc.,
18 AD3d at 51). Accordingly, a new trial on this aspect of
damages is required unless defendant stipulates to an increase in
the damage award for past lost profits to $54,017.50, and an
                                 -9-                  518120

increase in the award for future lost profits to $203,018.85.3

         Peters, P.J., Lahtinen, Rose and Lynch, JJ., concur.



      ORDERED that the order is modified, on the facts, without
costs, by reversing so much thereof as awarded plaintiff David
Vincent $15,000 for past pain and suffering, $0 for future pain
and suffering, $37,526 for past lost profits and $0 for future
lost profits; new trial ordered on the issues of past and future
pain and suffering and past and future lost profits unless,
within 20 days after service of a copy of the order herein,
defendant stipulates to increase the awards for past pain and
suffering to $75,000, for future pain and suffering to $100,000,
for past lost profits to $54,017.50 and for future lost profits
to $203,018.85, in which event said order, as so modified, is
affirmed.




                                ENTER:




                                Robert D. Mayberger
                                Clerk of the Court




     3
        The award for future lost profits is based upon the
average annual cost from 2008 through 2011 of employing the extra
worker – who did not work for a full year in 2007 – multiplied by
plaintiff's 8.7-year work-life expectancy at the time of trial.
