Ellis v. City of New York

Judgment, Supreme Court, Bronx County (Lucindo Suarez, J., and a jury), entered January 24, 2000, awarding plaintiff damages against defendant City of New York in the principal amounts of $500,000 for past pain and suffering and $600,000 for future pain and suffering over 20 years, unanimously modified, on the facts, to remand for a new trial on the issue of damages for future pain and suffering only, and otherwise affirmed, without costs, unless, within 30 days of service of a copy of this order with notice of entry, plaintiff stipulates to reduce the award for future pain and suffering to $450,000 and to entry of an amended judgment in accordance therewith.

Plaintiff sustained injuries as a result of stepping into a hole while playing baseball on a field in defendant’s park. The trial court correctly rejected defendant’s request to charge assumption of risk, the evidence being uncontroverted, that the hole was not, as defendant claims, “open and obvious” (citing, inter alia, Maddox v City of New York, 66 NY2d 270, 277), but concealed by grass (see, Morgan v State of New York, 90 NY2d 471, 485, 488-489; Swan v City of New York, 272 AD2d 394; Torres v City of New York, 271 AD2d 306). We find the award for future pain and suffering deviates materially from what is reasonable compensation under the circumstances to the extent indicated. We have considered and rejected defendants’ other arguments. Concur — Nardelli, J. P., Williams, Tom, Lerner and Friedman, JJ.