Zimmerman v. Rosiek

*1049—Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiffs contend that the award of damages for the past pain and suffering of Ronald J. Zimmerman (plaintiff) and the failure to award damages to him for future pain and suffering and to plaintiff Ellen Zimmerman on her derivative cause of action deviate materially from what would be reasonable compensation. We agree.

Plaintiff sustained a herniated cervical disc, which required an anterior discectomy and a fusion with a right iliac crest bone graft. Plaintiff was unable to work for 22 months as a result of the accident and has permanent loss of flexibility of his neck. The testimony of Ellen Zimmerman concerning the loss of her husband’s services and consortium was essentially unrebutted. We therefore conclude that the award of $25,000 for past pain and suffering and the failure to award any damages for future pain and suffering and for loss of services and consortium deviate materially from what would be reasonable compensation (see, CPLR 5501 [c]; Peck v Tired Iron Transp., 209 AD2d 979). Therefore, we modify the judgment by granting a new trial on damages for past and future pain and suffering and loss of services and consortium only, unless defendants, within 20 days of service of a copy of the order of this Court with notice of entry, stipulate to increase the verdict to $75,000 for past pain and suffering, $25,000 for future pain and suffering and $25,000 for loss of services and consortium, in which event the judgment is modified accordingly. (Appeal from Judgment of Supreme Court, Erie County, Sedita, Jr., J.—Damages.) Present—Pine, J. P., Hayes, Wisner, Boehm and Fallon, JJ.