Fending v. Carborundum Co.

— Judgment, insofar as it awards damages to plaintiff Donald J. Fending, unanimously reversed, on the law, with costs, and a new trial granted on the issue of damages only, unless defendant shall, within 20 days after service of a copy of the order herein with notice of entry thereof stipulate to increase the verdict to the principal sum of $100,000, in which event the judgment shall be modified accordingly and, as modified, affirmed, without costs. Memorandum: In our view, the jury verdict of $35,000 in favor of plaintiff Donald J. Fending deviates so much from what would be considered fair compensation for his injuries as to shock our conscience (see, Beardsley v Wyoming County Community Hosp., 79 AD2d 1110). In addition to his uncontroverted special damage claim of $5,000 for medical expenses, the proof demonstrates that *984plaintiff lost wages in the amount of $18,000 for the period from September 28, 1978 to June 13, 1979 and $2,500 for a second hospitalization period in 1982. Thus, it would appear that only $9,500 of the verdict may be allotted to plaintiff’s pain and suffering and future medical expenses. Defendants question plaintiff’s credibility concerning the pain he has suffered since the accident and claim that he did not establish that work would have been available to him during the time of his disability, that the second hospitalization was connected with his injury, or that there is reasonable certainty he will need future surgery. The uncontroverted medical testimony, however, is that plaintiff’s injury is permanent, painful, long term and degenerative. Based on the record, we find that the jury verdict for plaintiff Donald J. Fending was inadequate and should be raised to $100,000. (Appeals from judgment of Supreme Court, Niagara County, Ricotta, J. — tort—fall from scaffold.) Present — Dillon, P. J., Callahan, Doerr, Denman and Schnepp, JJ.