        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

140
CA 11-00129
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND GORSKI, JJ.


GAIL E. RYE, PLAINTIFF-APPELLANT,

                    V                               MEMORANDUM AND ORDER

LIFT LINE, INC. AND ROCHESTER GENESEE REGIONAL
TRANSPORTATION AUTHORITY, DEFENDANTS-RESPONDENTS.
(APPEAL NO. 1.)


CELLINO & BARNES, P.C., ROCHESTER (CHARLES F. BURKWIT OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

WOODS OVIATT GILMAN LLP, ROCHESTER (GRETA K. KOLCON OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Monroe County (Matthew
A. Rosenbaum, J.), entered April 28, 2010 in a personal injury action.
The order denied plaintiff’s motion to set aside the jury verdict
regarding pain and suffering damages awarded to plaintiff and for a
new trial relating to past and future pain and suffering.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the post-trial motion
is granted, the verdict is set aside and a new trial is granted on
damages for past and future pain and suffering unless defendants,
within 30 days of service of a copy of the order of this Court with
notice of entry, stipulate to increase the award of damages for past
pain and suffering to $45,000 and for future pain and suffering to
$15,000, in which event judgment shall be entered accordingly.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained while a passenger on a bus operated by
defendants. The incident in question occurred when the bus stopped
suddenly and plaintiff was ejected from her wheelchair, causing her to
slide head first into a partition located behind the driver’s seat.
Defendants conceded liability and, after a trial on damages only, the
jury awarded plaintiff damages in the amount of $10,000 for past pain
and suffering and zero damages for future pain and suffering. We
agree with plaintiff that Supreme Court erred in denying her post-
trial motion to set aside the verdict and for a new trial on damages
inasmuch as the verdict deviates materially from what would be
reasonable compensation (see CPLR 5501 [c]). Plaintiff’s injuries
included a slightly displaced fracture of her right femoral medial
condyle, i.e., knee joint. The injuries plaintiff sustained in the
accident, combined with her preexisting medical conditions, forced her
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                                                         CA 11-00129

to spend just over two months in the hospital and a rehabilitation
facility. We therefore reverse the order, grant the post-trial motion
and set aside the verdict, and we grant a new trial on damages for
past and future pain and suffering, unless defendants, within 30 days
of service of a copy of the order of this Court with notice of entry,
stipulate to increase the award of damages for past pain and suffering
to $45,000 and for future pain and suffering to $15,000, in which
event judgment shall be entered accordingly (see Inya v Ide Hyundai,
Inc., 209 AD2d 1015; see also LaPort v Bojedla, 262 AD2d 1025; cf.
Miller v Reynolds, 298 AD2d 836).




Entered:   January 31, 2012                     Frances E. Cafarell
                                                Clerk of the Court
